By Robert Bryson
This is the brief story of an over-zealous opposing counsel undone by his aggressive discovery motion work, which resulted in an adverse ruling, attorneys’ fees in our favor, and a finding that opposing counsel’s conduct was “indicative of bad faith.” The case settled a few months later on terms client found favorable.
This story begins, as many in civil litigation, with Form Interrogatories (Form Rogs). Form Rogs are built around the defined “INCIDENT.” The more complex the INCIDENT – the more difficult it is to define. Form Rogs are great for two-car collisions, breach of contract, and other lawsuits built around a single alleged INCIDENT. Indeed, the series 15, 20, and 50 questions are designed for these specific disputes. Despite these limitations, Form Rogs are useful in many cases (for example, pairing Form Rog 17.1 with Requests for Admission) if counsel is willing to acknowledge these limitations.
In this case, a dispute arose between Partners A and B, who were members of a joint venture. There were multiple allegations of bad conduct ultimately resulting in the termination of the business relationship. B served Form Interrogatories and declined to define INCIDENT and instead relied on the allegations in the complaint. Partner A provided responses which B found inadequate.
B’s counsel insisted that the responses were inadequate to support a cross-complaint and must either be amended or Partner A must withdraw its cross-complaint. At this point, the complaint was filed approximately two months prior — so discovery is still nascent. However, rather than calling counsel to discuss the perceived deficiencies, opposing counsel instead mail served (despite an electronic service agreement) a letter which was received the day after Thanksgiving (the office was closed). A’s counsel did not respond to the meet and confer. To put in context, A’s counsel had provided timely responses to all previous meet and confers and discovery requests — in short, missing this letter was uncharacteristic. Indeed, A’s responses were timely despite B refusing to grant a single courtesy extension.
A’s counsel did not become aware of B’s meet and confer letter until it was mail served a motion to compel the day after Christmas – again, the office was closed. In response, A’s counsel provided amended responses (totaling over 100 pages) and requested B withdraw its motion. B demanded A stipulate that the facts described in its responses constituted the totality of the evidence and would seek no further discovery or provide facts beyond those recited in the responses and sought more than $20,000 in attorney’s fees. An absurd demand considering the case was less than six months old and no depositions were yet taken.
The crux of B’s argument is that A did not provide adequate facts to support several alleged bad acts constituting the “INCIDENT” and therefore, the cross-complaint was filed in bad faith and must be withdrawn. B’s extreme position compelled A to file an opposition. A’s counsel argued three (3) points: (1) B’s motion and request for fees was filed in bad faith; (2) B’s litigation tactics further indicated bad faith; (3) and A’s amended responses were as complete as reasonably possible – given the limitations of Form Rogs. Indeed, B declined A’s multiple requests to narrow the definition of INCIDENT.
The Court denied B’s motion to compel and granted A’s request for attorneys’ fees (which were substantially less than $20,000). The Court found that B’s hardball litigation tactics, refusal to grant courtesy extensions, refusal to narrow its discovery request, failure to “pick up the phone” and call opposing counsel were “indicative of bad faith.” B didn’t just lose its motion; it also lost credibility with the Court. The case continued for several months but eventually settled in Partner A’s favor.
This entire dispute – the lost two months, attorney hours, printing, and service fees – could have been avoided if opposing counsel picked up the phone and engaged in a meaningful round of meet and confers.
Robert Bryson is a Litigator at Aguirre & Severson, LLP .