16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM FRAUD ON THE COURT AND ABUSIVE DISCOVERY David R. Hague*∗ Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have adopted it are abdicating their solemn responsibility as the gatekeeper to justice because inno- cent victims seeking to set aside judgments obtained by abusive discovery find themselves as a square-peg trying to fit into a round hole. The remedial and equi- table nature of the fraud-on-the-court doctrine and the great public policy that it embodies militates against making that burden an impossible hurdle for victims of abusive discovery. This Article suggests that courts depart from the heightened standard used to set aside judgments, particularly judgments obtained by abusive discovery. Specifically, this Article advances a four-step process to resolve the ultimate in- quiry: whether the abusive conduct caused the court not to perform in the usual manner its impartial task of adjudging cases. Under this standard, courts will more readily find that abusive discovery that undermines the integrity of the judi- cial process or influences the decision of the court constitutes a fraud on the court. TABLE OF CONTENTS INTRODUCTION ................................................................................................ 708 I. ABUSIVE DISCOVERY PRACTICE .......................................................... 711 A. Common Discovery Abuse ........................................................... 711 B. The Vulnerable Victims ................................................................ 717 1. The Pro Se Litigant ................................................................ 717 2. The Attorney-Abandoned Litigant ......................................... 722 II. FRAUD ON THE COURT ......................................................................... 725 III. ABUSIVE DISCOVERY AS FRAUD ON THE COURT AND REEVALUATING THE STANDARD ......................................................... 730 A. The Offender and His Duty .......................................................... 730 * Assistant Professor of Law, South Texas College of Law. I would like to thank my re- search assistant, Laura Thetford, for her help with this article. 707 16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM 708 NEVADA LAW JOURNAL [Vol. 16:707 B. Evaluation of the Conduct ........................................................... 732 C. Consideration of the Victim’s Status (The Equitable Component) .................................................................................. 735 D. Consideration of the Relief Being Sought .................................... 737 E. Illustration of the Four-Part Test ................................................ 739 1. The Offending Party and His Duty ........................................ 740 2. The Conduct ........................................................................... 740 3. The Victim .............................................................................. 741 4. The Relief ............................................................................... 741 CONCLUSION ................................................................................................... 742 INTRODUCTION There is an old adage that nice guys finish last. It is well documented that in litigation, this maxim oftentimes rings true. General William Tecumesh Sherman stated, “War is Hell!”1 Litigation, some think, is like war. Make your opponent’s life miserable, put them through hell, and you will eventually defeat your adversary. Why is hardball litigation so common? Is it because it works and frequently goes unpunished? As one scholar noted, “[t]hough perceptions differ, there seems to be some consensus that adversary excess is frequent, of- ten not by any standard justifiable as zealous representation, and that many lawyers will indeed cross ethical lines when they think they can get away with it, which, because of the weakness of monitoring agents, they usually do.”2 When this abusive practice—sometimes referred to by lawyers and judges as “Rambo-Lawyering”3—occurs during litigation, parties are equipped with several tools under the rules of civil procedure to thwart improper behavior and move the proceeding into civil territory. However, when attorney misconduct or abusive discovery tactics result in favorable judgments to the offending par- ties, the available remedies under the rules diminish substantially, and the party 1 William Tecumseh Sherman, WIKIQUOTE, http://en.wikiquote.org/wiki/William_Tecum seh_Sherman (last visited Jan. 5, 2016). 2 Robert W. Gordon, The Ethical Worlds of Large-Firm Litigators: Preliminary Observa- tions, 67 FORDHAM L. REV. 709, 736 (1998). 3 The term “Rambo Lawyering” has been discussed in several legal articles. See, e.g., Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 HOFSTRA L. REV. 561 (1996); Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 LOY. L.A. L. REV. 81 (1991); Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, A.B.A. J., Mar. 1, 1988, at 79. More- over, the District Court of Denver includes a “Rambo Lawyering” instruction to attorneys in case management orders. The instruction reads as follows: This is a CIVIL division. “Rambo Lawyering” will not be tolerated. Counsel will treat jurors, parties, witnesses, me, my staff and each other with professionalism, courtesy and respect at all times. This applies not only to the actual trial, but to all aspects of the case, including discovery and motions practice, and includes what is written as well as what is said. Rambo Lawyering, WEINBERGER LAW OFFICES, http://weinbergerlawoffice.com/article_ram bolawyering.asp (last visited Jan. 5, 2016). 16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM Spring 2016] FRAUD ON THE COURT 709 against whom the judgment was entered is now faced with a challenging legal hurdle. A rancher from Nevada knows this story all too well. In 2007, Judith Adams sued Susan Fallini for the death of her son after he struck one of Ms. Fallini’s cows that was on a well-known highway in Neva- da.4 That stretch of highway is designated as “open range.”5 Nevada law pro- tects open-range ranchers from liability if vehicles strike their cattle.6 Thus, Ms. Fallini should have prevailed in the lawsuit because of this statutory defense, but that did not happen.7 Instead, Ms. Fallini’s lawyer abandoned her during the case and, among other things, failed to respond to plaintiff’s requests for ad- mission, which asked Ms. Fallini to admit that the accident did not occur on open range, even though it did, and even though plaintiff and her attorney knew it did.8 Because she failed to answer the request for admission, she was deemed to have admitted that the accident did not occur on open range, which obviated her complete defense under Nevada law.9 Eventually, Ms. Fallini’s “admission” led to a partial summary judgment in plaintiff’s favor and an award of damages in excess of $2.7 million.10 Was the type of conduct in the Fallini case just clever lawyering and profi- cient advocacy? Or did the attorney act uncivilly or unethically in obtaining the judgment and, consequently, violate rules of civil procedure and professional conduct? More importantly, if the attorney knew the accident occurred on open range and knew that the open-range defense provided a complete defense to Fallini as a matter of law, did that attorney perpetrate a “fraud on the court”11 when he obtained summary judgment based on Fallini’s deemed admission of a well-known false fact? The answer to this last question is puzzling. While fraud on the court has been recognized for centuries as a basis for setting aside a final judgment, it has been used for several other purposes under the rules of civil procedure. Generally, fraud on the court is a fraud “directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents . It is thus fraud where . the impartial functions of the court have been directly corrupted.”12 Interestingly, the term “fraud on the court” is 4 Mike Blasky, Conflicted Judge’s Decision Looms in Rancher Lawsuit, L.V. REV.-J., July 28, 2014, at B001; see also Complaint at 2–4, Estate of Adams v. Fallini, No. CV24539 (Nev. 5th Dist. Ct. Jan. 31, 2007). 5 Blasky, supra note 4. 6 Id.; see also NEV. REV. STAT. ANN. § 568.360(1) (West 2015) (providing that those who own domestic animals do not have a duty to keep those animals off highways located on “open range” and are not liable for any damage or injury resulting from a collision between a motor vehicle and an animal on open range highways). 7 Blasky, supra note 4. 8 Id. 9 Id. 10 Id. 11 FED. R. CIV. P. 60(d)(3). 12 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (emphasis added) (citation omitted). 16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM 710 NEVADA LAW JOURNAL [Vol. 16:707 only mentioned