Hardball Discovery by Jerold S. Solovy and Robert L. Byman The deposition has been going on—and on—for three days. all played it ourselves from time to time. But we all make The deponent, wounded by thousands of trivial questions choices. We will be faced throughout our careers with like a bull worked over by a master picador, lapses between whether to play hardball in particular situations and how to rage and weeping frustration. The deponent's lawyer, barely respond when hardball is played against us. conscious, is making intricate designs with a paper clip on Before looking at these questions, two disclaimers: First, his styrofoam cup. this is not the place to explore ethics or the possible use of The young associate who has subjected the witness, his sanctions to attack impermissible conduct. Enough has been lawyer, and the court reporter to this agony is in his glory. written on both. More than enough will be written in the But the senior partner of the young interrogator's firm pulls future. The tactics we are talking about are within—though him out of the conference room and corners him. "What are perhaps stretching the outer limits of—the bounds of ethical you doing?!" the senior partner screams. restraint. "I'm wearing him down, sir. He'll jump at my settlement Second, since we have no expertise in the psychoanalyti­ offer when I tell him I'm about one-third through my exami­ cal sciences, we will not consider lawyers who play hardball nation outline." for the sheer love of the game. Such people cannot help "Are you crazy?" the senior asks. "We don't practice this themselves. They are as unpleasant to waitresses, shopkeep­ way!" ers, household pets, and school-crossing guards as they are "But, sir ..." whines the young associate, "it's working!" during discovery. These congenitally rough lawyers may, The older lawyer is unmoved. "Don't you understand? We from time to time, be effective in spite of themselves. But our don't practice this way. We can't do this. What if somebody aim is to offer guidance to those who can control the way did it to usl" they act. The scene is from the popular, and sometimes accurate, The basic question about hardball tactics is whether they television drama "L.A. Law." In a few minutes, the writers are effective. If they are not, it does not much matter whether have captured one of litigation's most challenging conun­ they are ethical or make us feel good. Scholars can debate drums. The young associate was playing hardball in discov­ ethics, but practical lawyers need not always get that far. If it ery. His tactics were apparently effective. Yet his superior does not work, you should not do it. If it does work, then commanded that they cease. Why did the script call for a consider ethics. halt? Because such tactics violate ethical rules? No. Because In our view, hardball tactics do not work. To see why, they violate court rules? No. Because they violate rules of imagine a baseball game—hardball, of course—between logic? No. Such tactics are frowned on because they violate two legal adversaries. the Golden Rule: Thou shalt not do unto others, lest... Were the script writers overly cynical about why the part­ The Starting Lineups ner called the game? Or were they not cynical enough? How The home team is the law firm of Crafty & Cagey. It many firms would stop playing the game just when their side represents an English company, Gyroslop, a manufacturer of was about to score? automatic hot porridge vending machines distributed Litigators tend to think that terms like "hard-nosed litiga­ throughout Europe. For five years, Gyroslop has tried to tor" or "tough trial lawyer" are redundant. Litigators are establish a long-term business arrangement with Georgia- supposed to be hard-nosed and tough. Litigation is supposed based Pure Foods, a manufacturer of dry cereal products to be hardball. We have all had it played against us. We have distributed by vending machine in the United States. But the relationship has recently broken down. Gyroslop wants to Messrs. Solovy and Byman are partners in the Chicago firm of termer sue Pure for a variety of perceived causes of action. Crafty & & Block. Cagey plays hardball. Litigation Fall 1988 8 Volume 15 Number 1 Pure is represented by the old-line, gentleman and gentle- tories may be used by Pure as a form to be served back on womanly firm of Sweetness & Life. Sweetness & Life's Gyroslop. This is not a big problem, however, since even usual game is cricket, but it has occasionally, with great re­ Sweetness & Life knows how to frame discovery requests luctance, played a game or two of hardball. expansively enough to drive Xerox stock still higher. A more serious problem with such tactics may exist where the Spring Training plaintiff's case is strong and relatively simple. Where there is Although the business breakdown occurred in January, a legitimate chance of getting early injunctive relief, sum­ and although Gyroslop may want to seek injunctive relief mary judgment, or an early trial date, kicking off omnibus against Pure, Crafty & Cagey takes time to develop its case discovery can only delay the desirable. But Gyroslop need during spring training. Some lawyers might put together a not worry about this last risk. Its case is marginal, and its complaint and motion for preliminary injunction as quickly hardball tactics are designed to force a settlement or create as possible. Not the experienced hardball players at Crafty & enough red herrings to confuse a jury into a judgment. Cagey. Instead, weeks and months are spent fine-tuning the Gyroslop's first volley has Pure on the defensive. Gy­ most burdensome possible discovery requests to accompany roslop has won the first inning. the complaint. Thorough hardball players that they are, the lawyers at Emergency Depositions Crafty & Cagey also plot a home-field advantage. The action Inning 2: Gyroslop 2, Pure 0 will not be filed in Georgia, where Pure is incorporated, has Crafty & Cagey insists on going forward with depositions its principal place of business, and where all of its executives of Pure's key officers even before Sweetness & Life can are located. Rather, Gyroslop files in Illinois, where Pure has assemble documents or answer interrogatories. It claims the an independent distributor who test marketed Gyroslop's depositions are needed for the preliminary injunction hear­ machines. (This article is about hardball in discovery, and ing. Crafty & Cagey would not be so insistent, of course, if it therefore will not linger over the details of selecting the really wanted to conduct its discovery efficiently. But that is playing field. Just remember, however, that hardball can be not Crafty & Cagey's goal. It has no intention of completing played on many levels, not merely in discovery.) these "emergency" depositions; it wants a second shot at At the outset, then, Gyroslop has assembled its lineup, Pure's key witnesses after documents are ultimately pro­ gone through its spring training and preparation, selected the duced. In true hardball, money is no object. playing field, and—by way of a summons and motion for Therefore, Crafty & Cagey always leaves open the possi­ preliminary injunction returnable on a few days' notice— bility that every deposition will have to be resumed. A num­ issued an invitation to Pure for an away game. Sweetness & ber of devices are employed to this end. The most obvious is Life is playing catch-up from the start. to begin a deposition before documents relating to the depo­ The Initial Volley of Discovery nent are produced. A further session will be needed after the documents become available. Inning 1: Gyroslop 1, Pure 0 Another tactic, elegant in its simplicity, is to schedule Gyroslop gets out to an early lead by burying Pure in more depositions within a limited time than can possibly be discovery. The federal rules ordinarily bar a plaintiff from concluded. Since Crafty & Cagey must travel from its offices serving discovery requests returnable less than 45 days from in Chicago to Georgia for the depositions, it notices five filing. Gyroslop's motion for preliminary injunction, how­ ever, gives Crafty & Cagey an opening that wily veterans of the game often exploit. Gyroslop accompanies its complaint with a motion for expedited discovery. Its document requests require the production of every piece of paper generated by Pure over the past 12 years. Gyroslop's interrogatories, if answered completely, will require a platoon of lawyers to interview every living Pure executive, past and present, for days, maybe weeks. Gyroslop's emergency notices of depo­ sition will require Pure's key executives to cease all normal business activities while they prepare for and attend days of deposition inquiry. Analysis from the Broadcast Booth: Burying an opponent in early discovery is one of the most common and possibly effective kinds of hardball discovery. Such tactics are be­ coming so commonplace in commercial litigation that it may not even be appropriate to describe them as hardball. In fact, early, detailed discovery can be effective on many levels. It can uncover information actually useful in the case. It puts the defendant on the defensive and diverts resources that might have been used to prepare a defense or counteroffen- sive. And by creating immediate burdens, it can produce an early settlement. There is little risk in such early tactics. Of course, Crafty & Cagey's carefully drafted document requests and interroga­ Liligation Fall 19 Volume 15 Number 1 tained in the normal course of business. Anyway, there has always been a counter to boiler room production: Make a cursory review of the documents (to eliminate any docu­ ments thrown in for bulk alone) and request copies of every­ thing else.