An Unwise Approach
January 26, 2009
Cut and paste. Never before in the practice of law has this been more prevalent. As a means of efficiency, fine. As a substitute for thinking, bad idea.
One area where we see this most is discovery--both in questions and objections. Having had the delightful pleasure of reading hundreds of sets of interrogatories and production requests--a tremendous pastime--it isn't hard to see the similarities. Many are identical. It's as if one person drafted the original tablet and from there we make our modifications.
Objections may be the worst. "Objection. Vague and overbroad." Is it part vague and part overbroad? Can it be that it is so vague that you cannot even possibly tell yet if it is indeed (gulp), overbroad too?
Objection "goes" to the ultimate issue. I certainly hope so. That's what the question was intended to do. That way I can find out what the heck the case is about.
And then there's the ever-magical answer "investigation continues." Boy, that is a favorite of many. Can't figure out how to answer, hitting a deadline, or just plain tired of answering? In comes the ever popular "investigation continues." As if the opposing lawyer thought it would stop once discovery answers were filed. "Ohhhh, the investigation will continue--well, thank God for that. Okay, then that answer is fine."
A federal court in Maryland recently weighed in on the practice of making thoughtless objections, reminding lawyers of the requirements that we not do so. "One of the most important, but apparently least understood or followed, of the discovery rules is Fed.R.Civ.P. 26(g), enacted in 1983."
The rule requires that every discovery disclosure be signed by at least one attorney and the signature "certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry," the disclosure or objection is warranted by existing law, not unreasonable, and not interposed for any improper purpose, such as to harass or cause delay. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 D.Md., (Oct. 2008), citing Fed.R.Civ.P. 26(g). Violating the rule permits a court on motion or sua sponte to impose sanctions. Fed.R.Civ.P. 26(g)(3).
Closer to home, the Seventh Circuit addressed this issue of attorneys "not thinking" when making objections in a case involving the now indicted Jon Burge. (By the way, couldn't the feds have saved a lot of time and money by just putting him in a room with Blago for a while, kind of an economies of scale approach?)
Back to the point. In Hobley v. Chicago Police Commander Burge (2003 WL 22682362 N.D. Ill., 2003), the court reminded lawyers that the purpose of the attorney's signature under Rule 26(g) is to "oblige each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." Citing Fed.R.Civ.P. 26, Advisory Committee Notes, 1983 Amendment.
The issue in that case involved a claim by city counsel that its objections were not meant to be its "real answers," but rather only set forth to preserve its record on appeal. That's another statement we hear quite often--"just doing this to preserve the record."
The court rejected this outright, stating: "The city's notion that it could preserve 'possible objections' flies in the face of the text of these Rules. The city was required to enunciate its actual objections and its actual responses within the time required. The city's tactic of serving a faux response in order to buy time to consider 'possible' objections is simply contrary to the Federal Rules." Id.
"The court has a right to expect that discovery responses signed pursuant to Rule 26 (g) contain a genuine articulation of the responding party's original objections. The court should not be required to work its way through pages of boilerplate objections only to hear that those objections were not the responding party's 'real' position... That is not what the Rules contemplate and require of attorneys practicing in federal court." Id.
Rather than sanction the attorneys, they were slapped for about four hours until they changed the answers and admitted they were wrong.
The cut-and-paste approach isn't limited to discovery.
Earlier this year, a court of appeals threw out a case, calling the brief by immigration counsel a "cut and paste affair." It presented facts of another case, notably for a person of a different gender. "This substantive failure to comply with Federal Rule of Appellate Procedure 28 alone justifies dismissal." Rusli v. Mukasey No. 06-1941 U.S Ct. Appeals, 1st Circuit, June 2008.
It isn't confined to civil actions, either. A few years ago, a Texas lawyer was found to have submitted nearly identical briefs, including the same typos, on two different death penalty appeals. Confronted with these charges, his response was, "It was a good argument. I'd do it again." Laredo Morning Times, Feb. 27, 2006.
And then they cut-and-pasted new counsel in for him. dheilmann@clausen.com
