Thu. Jun 6th, 2024


Discovery Abuse

Our blog for this week discusses discovery abuse. “Discovery” is the stage in a lawsuit where parties to a case have a right to obtain evidence from opposing parties and third parties which supports their claims and defenses. “Discovery abuse” occurs when the discovery process is wrongfully undermined. For example, in a case involving an injury sustained during a car accident, the plaintiff (the party bringing the lawsuit) may seek to obtain dash-cam footage from the defendant’s car which shows that the defendant ran a red light before crashing into and injuring the plaintiff. Setting aside any fifth amendment self-incrimination issues, if the lawyer for the defendant’s insurance company in that case refused to allow the plaintiff’s attorney to access the video footage, the defendant’s attorney might be said to have committed discovery abuse.

In our earlier blog article, “How To Compel Discovery In North Dakota,” we discussed what can be done to address and correct discovery abuses when they happen in litigation. You can read about that here. In this blog post, we discuss the significance of discovery abuse and go over some ways in which it can manifest itself.

The Significance Of Discovery Abuse

The topic of discovery abuse is significant both as it may relate to a particular lawsuit in question and also with respect to the implications it can have on justice at large. Our system of justice in the United States is described as an “adversarial legal system.” Adversarial legal systems are features of common law countries and are characterized by self-driven advocacy before a neutral and largely passive judge and jury. Unlike in civil law systems, where the judge may interview witnesses and serve as an “inquisitor,” in adversarial legal systems, the judge plays a minimal role in obtaining the evidence and facts of the case. This is how it usually works, despite what we may have seen on TV.

Because the judge plays a neutral role in the common law system, the burden of finding the truth largely rests with the parties’ attorneys in the case. Pursuant to North Dakota Rule of Civil Procedure 26(b)(1)(A), parties may obtain discovery from an adverse party regarding any nonprivileged (not otherwise protected by law) matter that is relevant to any party’s claim or defense. At the same time, attorneys must be zealous advocates for their clients, fully devoted to advancing their clients’ interests. See N.D.R. Prof. Conduct 1.3 cmt. 1 (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”).

So what happens when the truth is damaging to one of the parties; what happens, for example, when the dash-cam video shows that the light was red? This is where discovery abuse comes into play. Make no mistake: litigation is a fight, but it is not a game. As noted by the Court in Haeger v. Goodyear Tire & Rubber Co., 906 F. Supp. 2d 938, 941 (D. Ariz. 2012), “[l]itigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Discovery abuse might be likened to a situation where one party refuses to fight fairly. And where discovery is abused, justice is thwarted.

Some Typical Forms Of Discovery Abuse And Rule Violations

Discovery abuse oftentimes arises during written discovery. Written discovery refers to discovery that is achieved by way of written prompts served on an adverse party to a lawsuit. The most common forms of written discovery are interrogatories, requests for production, and requests for admission.

Interrogatories are written questions sent by one party to an adverse party and are governed by North Dakota Rule of Civil Procedure 33. Requests for production are written requests by a party to an adverse party asking that documents or electronically stored information be produced. They are governed by North Dakota Rule of Civil Procedure 34. Requests for admission are governed by North Dakota Rule of Civil Procedure 36 and are requests by one party to an adverse party that a factual statement be admitted as true.

In written discovery, discovery abuse can oftentimes manifest itself through boilerplate objections, as well as evasive, incomplete responses to interrogatories and requests for production.

Boilerplate Objections

Vague, repeated objections to discovery requests on the basis of “form and foundation” or on grounds that a request is “overly broad, vague, and unduly burdensome” are referred to as “boilerplate objections” and are improper under the North Dakota Rules of Civil Procedure. Grounds for objecting to interrogatories and requests for production must be stated with specificity and should not merely regurgitate stock phrases from the North Dakota Rules of Civil Procedure. For example, Rule 33(b)(4) of the North Dakota Rules of Civil Procedure requires that “the grounds for objecting to an interrogatory must be stated with specificity,” and Rule 34(b)(2)(B) provides that “for each item or category, the response must . . . state with specificity the grounds for objecting to the request.”

Courts have repeatedly held that boilerplate objections are improper and have stricken them accordingly. Just a few examples of Courts treating boilerplate objections with disdain include: Kooima v. Zacklift Intern., Inc., 209 F.R.D. 444, 446, 53 Fed. R. Serv. 3d 1315 (D.S.D. 2002) (noting that “boilerplate objections are unacceptable”); Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528 (S.D.W.Va.2007) (commenting that “there is abundant caselaw to the effect that boilerplate objections to Rule 34 document requests are inappropriate.”); and Perez Librado v. M.S. Carriers, Inc., 2003 WL 21075918 (N.D. Tex. 2003) (concluding that “a mere statement by a party that an interrogatory is overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection. Broad-based, non-specific objections are almost impossible to assess on their merits, and fall woefully short of the burden that must be borne by a party making an objection to an interrogatory or document request.”).

In one case, St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508 (N.D. Iowa 2000), the Court crafted a special sanction for Counsel due to the boilerplate objections asserted in discovery, requiring that the lawyer write an article explaining why the objections were improper and submit it to the New York and Iowa Bar Journals. Other Courts have not been so kind, awarding severe monetary sanctions. Haeger, 906 F. Supp. 2d at 982. North Dakota Courts have a significant amount of discretion when choosing to award discovery sanctions. Benedict v. St. Luke’s Hosps., 365 N.W.2d 499, 504 (N.D. 1985).

Continuing with our previous example, let’s assume that the civil defendant is in possession of the dash-cam video footage of the accident and the plaintiff propounds the following interrogatory, receiving the following objection in response:

Interrogatory Number 1:

Please state whether you had any dash-cam or other video recording device in your vehicle at the time of the crash which captured footage of the accident.


Objection to form and foundation. This request is overly broad, vague, unduly burdensome, and seeks information not reasonably calculated to lead to the discovery of admissible evidence. This request also seeks information protected by attorney-client privilege, and attorney work product.

Here, we can see that the plaintiff is seeking to obtain discovery regarding factual matter that is relevant to his negligence claim. To succeed in his negligence claim, the plaintiff must prove by a preponderance of the evidence that the defendant caused him harm by breaching a legal duty the defendant owed the plaintiff. If the defendant has video footage of the accident which helps the plaintiff show that the defendant breached his duty of care, the defendant must state as much in response to plaintiff’s request. As a result, in the first instance, the plaintiff’s discovery request is proper under North Rule Dakota Rule of Civil Procedure 26(b)(1)(A).

Second, we can see that the defendant has offered the plaintiff a boilerplate, obstructionist objection in response to the plaintiff’s legitimate request—on the basis of form, foundation, breadth, relevance, privilege, and work product. Contrary to Rule 33(b)(4), the defendant’s objection has not been stated with specificity. How is the discovery request overly broad? How would it be unduly burdensome for the defendant to state whether it possesses this video footage? The defendant has not provided any such information. Indeed, the plaintiff’s attorney is asking for nothing more than a simple statement.

With respect to the objection based on privilege and attorney work product, the defendant’s objection again falls short of what is required by the North Dakota Rules of Civil Procedure. Under Rule 26(b)(5)(A), as in this example, when a defendant withholds information that is otherwise discoverable by claiming that it is privileged or protected as attorney work product, the defendant must provide a description of the nature of the information in a manner that will allow the plaintiff to assess the claim. The North Dakota Supreme Court, in St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65, ¶ 17, reiterated that “[t]he party claiming the privilege and desiring to exclude the evidence has the burden to prove the communications fall within the terms of the statute or rule granting the privilege.” Again, the defendant has provided nothing. This exemplifies a form of discovery abuse, even if it may be relatively common.

Evasive, Incomplete Responses

As with boilerplate objections, evasive, incomplete responses to discovery requests are improper under the North Dakota Rules of Civil Procedure, and can be forms of discovery abuse. In Voracheck v. Citizens State Bank of Lankin, 421 N.W.2d 45, 51 (N.D. 1988), the North Dakota Supreme Court noted that, with respect to discovery, even substantial compliance is not enough. Instead, complete and accurate compliance is required:

A party is not at liberty to “pick and choose” what information will be provided and what information will be withheld. Selective, substantial compliance is not enough; complete, accurate, and timely compliance is required by the rules. If a party were allowed to withhold certain information because it had provided some of the requested information, the discovery process would be rendered useless.

Rule 37(a)(4) of the North Dakota Rules of Civil Procedure provide that “an evasive or incomplete answer or response must be treated as a failure to answer or respond.” Similarly, under Rule 26(e)(1), where a party has become aware that a discovery response is incomplete or incorrect, that party must supplement or correct it.

Continuing with our previous example, let’s assume that the civil defendant decides, instead of fully answering the interrogatory, to merely state either that “this answer may be supplemented” or that “discovery is continuing.” These are, once again, relatively common discovery responses in litigation, but nonetheless can serve as forms of discovery abuse. North Dakota Rule of Civil Procedure 33(b)(3) requires that each interrogatory, to the extent that it is not objected to, be answered fully and in writing. Answering only that “discovery is continuing” or “this answer may be supplemented” are failures to respond to discovery. See also Carolina Cas. Ins. Co. v. Oahu Air Conditioning Serv., Inc., No. 2:13-CV-01378-WBS-AC, 2014 WL 4661979, at *4 (E.D. Cal. Sept. 17, 2014) (finding the response “discovery is continuing” insufficient and granting motion to compel); Azer v. Courthouse Racquetball Corp., 852 P.2d 75, 84 (Haw. Ct. App. 1993) (concluding that the response “discovery is continuing” was a failure to answer under Rule 37(a)(3)); K.R.S. v. Bedford Cmty. Sch. Dist., No. 4:13-CV-00147-HCA, 2014 WL 11513167, at *4 (S.D. Iowa Dec. 15, 2014) (“this response may be supplemented,” is improper, vague, boilerplate language that must be supplemented).


Discovery abuse is serious and thwarts the truth-finding process required for our common law legal system to produce just outcomes. The duty to make diligent efforts to respond completely to the substance of discovery does not stop with the North Dakota Rules of Civil Procedure. Rule 3.4 of the North Dakota Rules of Professional Conduct states, in subsection a, that “[a] lawyer shall not . . . unlawfully obstruct another party’s access to evidence,” and in subsection d provides that “[a] lawyer shall not . . . fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party.” As officers of the Court, lawyers have a duty to help ensure the integrity of the legal system, and that duty becomes especially evident in discovery.

In this blog article, we’ve discussed why discovery abuse is important, and gone over some examples of how it can manifest itself. The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. Each case is different, and this article is meant only to provide a brief summary of the law. You should contact an attorney to obtain advice with respect to your particular case.


Discovery Abuse – What To Do When Defendants Withhold Applicable Insurance Policies

A lawsuit begins once a plaintiff initiates a civil action against one or more defendants.  As soon as the defendant answers, both parties begin to exchange written discovery requests to solicit specific information from the opposing party that is relevant to the litigation.  The information sought can be in the form of documents or other tangible items such as video or audio recordings, bank statements, tax documents, letters, emails, etc.  Additionally, the Texas Rules of Civil Procedure allow parties to solicit admissions, interrogatories, and other information through depositions. Each of these methods seeks to develop the factual circumstances surrounding the lawsuit to ensure that the parties attorneys are informed. This helps prepare a game plan for the attorneys to present their version of what actually happened to their clients.

Withholding Information on Documents from Discovery Requests

The obvious question then becomes: what happens if the opposing party withholds discoverable information—such as an insurance policy?

The existence of an insurance policy can be key information in determining the defendant’s ability to pay a judgment or settlement based on the merits of the case.  Namely, an insurer has a duty to defend claims against one of their insured and the existence of a liability insurance policy may be the difference between the injured party being able to recover damages or not.

When one of the parties does not cooperate with discovery requests or fails to answer the requests thoroughly, the opposing party has a few avenues for redress.  The first is to “meet and confer.” This method is an informal attempt to resolve discovery disputes before the parties involve the court.  The purpose is to save the parties time and money and increase the judicial economy by encouraging a resolution of disputes without the need for court intervention.  If this is unsuccessful because one party contends certain information is not discoverable, the complaining party may then file a motion to compel discovery with the court.

What is a Motion to Compel?

A motion to compel operates as a formal request for the court to require the non-producing party to comply with the discovery requests. This is done by requiring that the offending party must produce whatever information they have withheld.  The party filing this motion must prove that they have requested discoverable and relevant information that was withheld.  The court, after hearing evidence of one party’s attempts to get discoverable information and the other party’s refusal or neglect to provide, will determine whether the non-producing party is abusing the discovery process and may compel that party to produce discoverable information—such as an applicable insurance policy.  A determination that the withholding of information is proper ends the conflict; however, a determination that the withheld information was discoverable results in a granted motion to compel, and nonadherence to this ruling results in court-imposed sanctions against the nonadherent party.

Court Sanctions

Determining that the non-producing party has abused discovery can lead to sanctions by the court that takes various forms.  One method of sanctioning the non-producing party is to award the party seeking discoverable information reasonable attorney’s fees to compensate them for the time they spent preparing pleadings and spending time compelling the information.  Other sanctions include disallowing further discovery of a particular kind by the disobedient party, an order refusing the disobedient party from supporting or opposing designated claims or defenses, or an order staying the proceedings until the order is obeyed.  These sanctions handicap the disobedient party’s ability to conduct cost-effective cases and place them in a position where they are unable to conclude a case for their client until they comply.


In the end, the legal community is tight-knit.  Withholding pertinent information from opposing counsel will not get anyone very far, and the risks far outweigh the reward.  In that a liability insurance policy is withheld, there are safeguards in place to ensure that counsel acting in bad faith through withholding such information is held accountable and forced to comply—or face sanctions by the court. cited




National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF





Journal of Forensic & Investigative Accounting

Fighting Discovery Abuse in Litigation

Vol. 6, Issue 2, July – December, 2014
William Hopwood
Carl Pacini
George Young

Forensic accountants can serve a number of important roles in a legal dispute. In these roles, forensic accountants often provide:
1) discovery assistance (e.g., knowing what specific information to request and identifying the appropriate individuals to depose or interview);
2) development of a detailed, straightforward analysis and report that communicates appropriate findings and conclusions; and
3) the delivery of effective testimony whether it be in deposition, arbitration, trial or other dispute resolution forums. Since discovery accounts for the majority of the cost of civil litigation (as much as 90 percent in complex cases), 1 the role that forensic accountants play in the discovery process is particularly significant.

Discovery is the formal process that litigants use to obtain information from opposing parties (Sinclair, 2008; Crumbley, 2013). The discovery process, in theory, enables the parties to know before trial begins what evidence may be presented. This process minimizes surprises, lowers the transaction costs of dispute resolution, increases the percentage of settled cases, improves the accuracy of trials and filters out frivolous disputes (Kim and Ryu, 2002).

*The authors are, respectively, Professor of Accounting at Florida Atlantic University, Associate Professor of Accounting at the University of South Florida-St. Petersburg, and Associate Professor of Accounting at Florida Atlantic University.
1Memorandum from Paul Niemeyer, Chair, Advisory Comm. on Civil Rules to Hon. Anthony J. Scirica, Chair, Comm. on Rules of Practice and Procedure (May 11, 1999), 192 F.R.D. 340, 357 (2000).

How the course of discovery proceeds, in practice, is a decision made by the parties to the lawsuit.2
Over the years, discovery has been transformed from a tool to gather facts into a tactical weapon. For many attorneys, discovery evolved into the ultimate adversarial proceeding referred and 2) “stonewalling” or opposing otherwise proper discovery requests for the purpose of frustrating the other party (Hare et al., 1995). As a result, abusive tactics increase the costs of litigation, contribute to the general dissatisfaction with the justice system, engender the criticism that judicial resources are misused and encourage unjust settlements (Flegal, 1982; Rennie, 2011).

Abusive tactics are fostered by the justice system itself. First, attorneys know that lawyers are given multiple opportunities to comply with discovery requests before judicial enforcement of discovery obligations is imposed by the court (Lee and Willging, 2010; Mehr, 2012). Second, the generally accepted law firm economic model provides an incentive to increase the costs of discovery as lawyers may use it as a way to increase the number of hours they bill to clients (Lee and Willging, 2010; Mehr, 2012). Since our legal system simply cannot remove discovery from the process, forensic accountants, lawyers, and judges must use tools at their disposal to enforce compliance with the rules, consistent with the spirit of discovery.

2See Fed. R. Civ. P. 26(f) (describing the mandatory conference opposing parties must have to decide the time table of discovery as well as the general issues that will be pursued).

The purpose of this article is to show how litigation support tools can be combined with standard discovery techniques to obtain critical evidence from an opposing party bent on discovery abuse. An enhanced understanding of these issues will place forensic accountants in a better position to assist attorneys in litigation. Moreover, the use of various litigation support tools will improve attorneys’ chances of securing valuable evidence that they otherwise would

not obtain.

We first discuss discovery devices and various methods that have been used to abuse the discovery process. We then offer a collaborative or team approach and provide tactics to fight discovery abuse.

What is Discovery?

The process of discovery begins with an initial meeting of the parties to the lawsuit (hereinafter referred to as “parties”) during which they are required to make or arrange for mandatory disclosures and develop a proposed discovery plan. The timing for discovery should be established. The judge uses the plan to implement the timeline so that discovery is completed by the agreed-upon date. 3 After the initial meeting, mandatory initial disclosures occur and must

be made “based upon the information then reasonably available ….” 4 A litigant is not excused from making disclosures “because it has not yet fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.”5
3 Fed. R. Civ. P. 26(f).
4 Fed. R. Civ. P. 26(a)(1)(E).
5 Fed. R. Civ. P. 26(a)(1)(E).

The Federal Rules of Civil Procedure allow a litigant to pursue information from the other party by, for example, depositions, interrogatories, document production requests, requests for physical or mental examination, and requests for admission. Litigants must even provide their opponents with information that may not be admissible at trial if the information could reasonably lead to the discovery of admissible evidence. 6

Depositions require the opposing party or third-party witness to be placed under oath before trial and answer questions posed by attorneys from both sides of the case. Anyone who may have knowledge or expertise pertinent to the case may be deposed, including expert witnesses such as forensic accountants. The Federal Rules of Civil Procedure allow each party up to ten depositions. No limit exists on the number of questions that may be asked, but there is

a time limit of seven hours (per day). The three main reasons to take depositions are: 1) to lock witnesses into their testimony; 2) to become aware of information possessed by the other side; and 3) to ascertain how a witness will appear and conduct himself or herself before a judge or jury.
Interrogatories are a set of written questions directed to the other party to the lawsuit. The other party must submit written answers. Interrogatories may only be directed to a party in the case. Questions can either be broad (“What happened on April 19, 2013?”) or very specific (“Is it your stance that the defendant did not prepare his own tax return?”) Each party is permitted to serve 25 interrogatories upon another party but must secure leave of court, i.e.,
6 Some information is protected from discovery. Reasons why information may be undiscoverable include some legal privilege (e.g., attorney-client privilege)(Fed. R. Civ. P. 26(b)(1)), the work product rule (trial preparation materials)(Fed. R. Civ. P. 26(b)(3)), non-testifying experts (Fed. R. Civ. P. 26(b)(4)(D)), and court-imposed limits for good cause (Fed. R. Civ. P. 26(b)(2) and 26(c)). permission by the court, or consent of the other party to serve a larger number.7 Sometimes responses to interrogatories are verified by inclusion in an affidavit.

The Federal Rules of Civil Procedure provide that when interrogatories seek disclosure of information in corporate records, the party upon whom the request is served can designate the records that contain the answers. Objections to questions in interrogatories can be raised, and a party need not answer until a court determines their validity.

A request for the production of documents is a request made to a party in a lawsuit to turn over copies of any evidence in the form of paper documents, electronically stored information (ESI), or other items. A request for the production of documents usually contains separately- numbered requests. The request specifies a certain class or type of document, but often is broadly worded to cover as many documents as possible. Examples include copies of bank statements, insurance policies, or other financial or business documents related to the case. A request “must describe with reasonable particularity each item … to be inspected.” 8

The request also must “specify a reasonable time, place, and manner for the inspection.” 9 Requests for the production of documents are governed by Federal Rule of Civil Procedure 34.

A request for admissions is a list of questions, each of which is stated as a declaration which the responding party must admit, deny, or state the reason he or she cannot admit or deny. Instead of responding to each question, a responding party also may object to the request for admission itself. Requests are limited to facts, the application of law to facts, opinions about either the facts or the application of law to the facts, and the genuineness of any described

7 Fed. R. Civ. P. 33. 8 Fed. R. Civ. P. 34(b)(1)(A). 9 Fed. R. Civ. P. 34(b)(1)(B).

10 No limit exists on the number of requests for admission except for limits contained in local court rules.
Discovery Abuse

One persistent criticism of the Federal Rules of Civil Procedure is that discovery provisions do not quell the abusive discovery practices of litigants. Discovery abuse or predatory discovery

11 can take various forms. The first is excessive discovery such as the use by the requesting party of an avalanche of interrogatories, deposition notices, and document requests. The responding party may try to bury opponents with thousands of pages of documents.
12 These practices are to harass, cause delay, or wear down the adversary by forcing it to incur costs (Rennie, 2011). The second category is stonewalling or opposing proper discovery requests to frustrate the other party. A significant number of litigants refuse to comply with discovery requests or court orders or only partially comply with discovery requests or court orders.
13 A third type of predatory discovery is obnoxious behavior by attorneys. We discuss the various categories of discovery abuse in the context of interrogatories, depositions, and document requests.
10 Fed. R. Civ. P. 36(a)(1).
11 This term originates from Marrese v. Amer. Academy of Orthopedic Surgeons, 726 F. 2d 1150, 1162 (7th Cir. 1984). Predatory discovery is “sought not to gather evidence that will help the party seeking discovery to prevail on the merits of his case but to coerce his opposition to settle regardless of the merits ….”.
12Defendants can exploit the broad relevance standard under Federal Rule of Civil Procedure 26(b) by inundating plaintiffs with information. This exploitation is particularly likely to be acute in situations in which plaintiffs need discovery the most because they do not know enough about the defendant’s internal workings or documents to draft narrower requests. Many plaintiffs may simply buckle under the sheer volume of information and the costs of sifting through it (Glover, 2012).
13 Some of the more egregious federal cases in which a party failed to comply with a court order compelling discovery include: Wanderer v. Johnston, 910 F. 2d 652 (9 th Cir. 1990) (defendants refused to produce documents even though nine court orders had been issued to do so-the Ninth Circuit Court of Appeals affirmed entry of a default judgment of $25 million in plaintiffs’ favor) and John B. Hull, Inc. v. Waterbury Petroleum Prod., 845 F. 2d
1172, 1177 (2d Cir. 1988) (upholding sanction of dismissal of third-party plaintiff’s complaint and award of attorney’s fees and costs where the third party disregarded court orders). Journal of Forensic & Investigative Accounting Vol. 6, Issue 2, July – December, 2014


Interrogatories represent a comparatively inexpensive and efficient means of obtaining

information. Interrogatory practice requires litigants to conduct research and investigate specific
matters; as such, interrogatories can yield more thorough and relevant information. Despite
these advantages, predatory discovery through interrogatories may undermine proper litigation

Interrogatories are the most abused discovery device. Attorneys ask questions drawn

from a stock reserve and those questions return only objections, vague answers, and little
information (Luria and Clubby, 2005). The problem with interrogatories is that lawyers believe,
and the system reinforces, that the exchange and answer of interrogatories is a game (Luria and
Clubby, 2005).

Some attorneys have exploited judicial conflict concerning Rule 33(a) which states that

“any party may serve upon any other party written interrogatories, not exceeding 25 in number
….” Some courts and legal commentators have interpreted Rule 33(a) to apply to each and every
party of a civil action.
Hence, if A, B, and C filed a civil action against D and E, then A, B, and
C can each serve D and E with 25 interrogatories (for a total of 150 interrogatories) (Yoo, 2008).
The same arrangement would apply to any interrogatories filed by D and E upon A, B, and C
(Yoo, 2008). Also, this broad interpretation enables parties on the same side of a dispute to file
interrogatories upon one another (Yoo, 2008). Rule 33(a) defines “party” as any named actor in
a civil action. According to Yoo (2008), the broad interpretation accorded to the word “any” has
led to gross inefficiencies and has encouraged abuse.
14 St. Paul Fire and Marine Insurance Co. v. Birch, Stewart, Kolasch & Birch, LLP, 217 F.R.D. 288 (D. Mass. 2003); James Moore. 7 Moore’s Federal Practice §33.30[1]. Mathew Bender, 3rd ed., 1997 and Supp. 2004.

An alternate interpretation of Rule 33(a) is that the word “party” may refer to an entire side of a dispute collectively rather than to the individual actors that are members of each side. 15

In the example above, plaintiffs A, B, and C would be able collectively to file no more than 25 interrogatories upon D and E and vice-versa (Yoo, 2008).

The choice of interpretation of Rule 33(a) has implications for predatory discovery. The broad construction permits parties to file larger numbers of interrogatories and often more than is required for adequate discovery. This practice is particularly true for “big ticket cases where the stakes motivate parties to litigate by hook or crook” (Yoo, 2008). Interrogatory abuse also can affect smaller cases where well-heeled parties can protract discovery beyond the means of less wealthy parties (Yoo, 2008).

A second technique employed by litigants is the outright refusal to answer interrogatories (or take excessive time to answer). This conduct can buy a defendant a substantial amount of time and wear down the plaintiff as the latter seeks court sanctions. In National Hockey League v. Metropolitan Hockey Club, Inc.,16 the plaintiffs failed to answer various interrogatories submitted by the defendants, continually flouting the trial court’s discovery orders and timelines.

The federal district court dismissed the case with prejudice (i.e., with finality). On appeal, the U.S. Supreme Court upheld the dismissal. An example in which the plaintiffs’ case was
15 Zito v. Leasecomm Corp., 233 F.R.D. 395, 399 (S.D.N.Y. 2006) (a civil RICO case brought by more than 200 individual plaintiffs as the result of an alleged fraudulent e-commerce leasing scheme); Charles Wright, ArthurMiller and Richard Marcus. 8A Federal Practice and Procedure §2168.1,West 2d ed. 1994 and Supp. 2007.
16 427 U.S. 639 (1976).

dismissed for taking too long to answer interrogatories is Govas and Yiannias v. Chalmers and Electronic, Missiles & Communications, Inc.17
A third abuse occurs when counsel chooses to craft uninformative or inadequate responses to obscure important information. In other cases, a lawyer will intentionally fail to respond properly, objecting as often as possible. Appendix A contains a list of improper and proper objections. Some objections may be based on attorney-client privilege or the work product rule. Moreover, the attorney may not identify the facts, events, or documents to which
the privilege attaches and does not provide evidence to support the privilege claim.
A fourth abuse is that the responding party makes no effort to answer the interrogatory questions as asked. A responding party answers a question that was not asked and then claims it has provided a responsive answer. This abusive technique is quite time-consuming and determining whether the response provided was meant to be evasive can be difficult for counsel. The court also may have a hard time in determining whether a response is evasive, especially
cases that are industry specific or involve some type of product or service liability.
A fifth abuse centers on the fact that some consider interrogatories well-suited for discovering information about technical or statistical data (Rennie, 2011). Technical and statistical interrogatories require opposing counsel to ask the client to prepare the answer, as it is probable that the lawyer will not possess the necessary information (Luria and Clubby, 2005). A responding party may evade the interrogatory by using Rule 33(d), which allows it to avoid
answering when the answer may be derived from reviewing business records. The requesting
17 965 F. 2d 298 (7 th Cir. 1992). In that case, the plaintiffs, Govas and Yiannias, filed a suit alleging federal securities law fraud, common law fraud, and RICO violations. After the plaintiffs refused to answer interrogatoriesfor almost two years, defendants moved to have the case dismissed. The federal district court and appellate court upheld dismissal.

party would then have to make a motion to compel a response to the interrogatory.
If the
burden of summarizing the records is the same for both parties, the requesting party will lose the

Depositions are an effective discovery device that is used to collect information that has

not been screened by the opposing attorney. Witness deposition testimony can highlight
weaknesses in an opponent’s case, establish a basis to impeach a witness’ trial testimony,
preserve a witness’ knowledge in the event of unavailability at trial, and permit evaluation of a
deponent as a witness. Depositions have, however, been used as a predatory discovery practice.

One type of discovery abuse is vulgar and abusive language and physical threats. In

Saldana v. Kmart Corp.,
the plaintiff’s attorney, Lee Rohn, used the word “f*ck” numerous
times, including during depositions. In one deposition, Rohn told opposing counsel, “I will put
my remarks on the record as I’m entitled. I do not need to be lectured by you sir. Don’t f*ck
with me.” Sanctions were imposed by the district court, but they were overturned by a federal
appellate court. In Carroll v. The Jaques Admiralty Law Firm,
the Fifth Circuit upheld
sanctions against attorney Jaques for profane language and threats made to opposing counsel
during a videotaped deposition. Sanctions also may be imposed against a lawyer who does not
act to prevent a deponent from using abusive language. In GMAC Bank v. HTFC Corp.,
In Derson Group, Ltd. v. Right Management Consultants, Inc., 119 F.R.D. 396 (N.D. Ill. 1988), plaintiff Derson
Group did not answer two sets of interrogatories but instead made reference to 33,000 documents previously
produced in reliance on Rule 33(d). Since Derson Group delayed and provided no clue as to where to find requested
information, a federal district court granted a motion to compel answers to interrogatories.
84 F. Supp. 2d 629 (D.V.I. 1999), rev’d. in part, 260 F. 3d 228 (3
Cir. 2001).
110 F. 3d 290 (5
Cir. 1997).
248 F.R.D. 182 (E.D. Pa. 1993).
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
breach of contract case, the owner of HTFC said the word “f*ck” and variants thereof
approximately 73 times during a two-day deposition.

Physical threats are sometimes employed to intimidate a deponent and opposing counsel.

In Office of Disciplinary Counsel v. Levin,
an attorney was suspended indefinitely from the
practice of law for making physical threats during a deposition. Counsel threatened to take a
questioner’s mustache off his face, give the questioner the beating of his life, and slap him across
the face and break his head.

A second category of predatory deposition abuse involves instructions not to answer

and/or improper objections. Rule 30(c)(2) states that one “may instruct a deponent not to answer
only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to
present a motion” to terminate or limit. In Morales v. Zondo, Inc.,
a gender discrimination
case, counsel for employer Zondo instructed the defendant not to answer several questions
during a deposition. Sanctions were imposed against defendant’s counsel for this and other
misconduct. One federal court has ruled that instructions not to answer and which do not
conform to the Federal Rules of Civil Procedure, are “presumptively improper.”
A difficult
lawyer also may repeatedly make objections during a deposition. Appendix A outlines proper
and improper objections during a deposition. Objections should be limited to the form of a
question or the deponent’s nonresponsiveness. Objections to competency, relevancy, or
materiality are not waived and are preserved for trial (Alford et al., 2010). An objection to an
517 N.E. 2d 892 (Ohio 1998).
204 F.R.D. 50 (S.D.N.Y. 2001).
Boyd v. Univ. Md. Med. Sys., 173 F.R.D. 143 (D. Md. 1997).
Journal of Forensic & Investigative Accounting
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error or irregularity at a deposition is waived if it relates to the form of a question or answer or
other matter that might have been corrected at the time.

A third type of predatory practice in depositions involves witness coaching, interrupting a

witness, or private consultations. A technique followed by some attorneys is to make an
extended speaking objection that suggests an answer to a pending question (a form of witness
coaching). Rule 30 (c)(2) states that an objection “must be stated concisely in a
nonargumentative and nonsuggestive manner.” In VanPilsum v. Iowa State University,
plaintiff Joyce VanPilsum sued Iowa State for alleged age discrimination. Her counsel, attorney
Barrett, repeatedly restated the opposing attorney’s objections (making them thinly veiled
instructions to the witness), objected to the form of opposing counsel’s questions, and engaged in
ad hominem attacks. In a transcript of 4025 lines, only 70 percent contained questions by
opposing counsel and the deponent. The deposition style of attorney Barrett has become known
as “Rambo litigation.” Attorney Barrett was sanctioned and another deposition in front of a
discovery master was scheduled.

Another Rambo tactic is to hold private conferences with the client-deponent during the

deposition. In Hall v. Clifton Precision,
plaintiff’s counsel conferred privately with the
deponent on two occasions over the objection of opposing counsel. The federal district court
held that not only are private conferences barred but so are coffee breaks and recesses to discuss
answers to deposition questions.
Fed. Rule Civ. P. 32(d)(3)(B).
152 F.R.D. 179 (S.D. Iowa 1993).
150 F.R.D. 525 (E.D. Pa. 1993).
Journal of Forensic & Investigative Accounting
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Although somewhat rare, one last category of deposition discovery abuse is physical

violence. In Brewer v. Town of W. Hartford,
lawyer James Brewer deposed Officer Jack
Casey of the West Hartford police concerning the suicide of a police officer. Brewer asked
various questions that the opposing lawyer would not allow Casey to answer. In response,
Brewer physically attacked Casey and his attorney. Brewer was disbarred and convicted of a
Requests for Document Production and Inspections

In litigation, forensic accountants and the attorneys for whom they work depend to a

large extent on documents and other data obtained from opposing counsel through the document
production and/or inspection process. Unfortunately, one of the most contentious battlegrounds
involves document or data production in response to requests under Rule 34.

One common discovery abuse is the use of overbroad document production requests in an

attempt to cast a wide net to launch a litigation “fishing expedition.” In Regan-Touhy v.
Walgreen Co.,
Ms. Touhy sued Walgreen Co. alleging intentional infliction of emotional
distress, breach of duty of confidentiality, invasion of privacy, and disclosure of confidential
medical information. Document production requests included a request for log files or other
documents capable of identifying which employees had access to her pharmacy account
information, a request for all manuals concerning any computer system or program housing data
about Ms. Touhy, a request for an employee’s personnel file, a request for all e-mails from one
employee’s e-mail account and a request for all documents that relate in any way to Ms. Touhy.
U.S. Dist. LEXIS 72734 (D. Conn. Sept. 28, 2007).
526 F. 3d 641 (10
Cir. 2008). The specific allegations of the plaintiff are that a former Walgreen’s pharmacy
technician, Kim Whitlock, disclosed the contents of Ms. Touhy’s medical records (i.e., a case of genital herpes) to
the plaintiff’s ex-husband and others.
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The Tenth Circuit Court of Appeals upheld a district court order that these requests were overly
broad. A litigant has a duty to state discovery requests with “reasonable particularity.”
request for document production should be sufficiently definite to “apprise a person of ordinary
intelligence what documents are required and to enable the court … to ascertain whether the
requested documents have been produced.”

A second abuse involving document production requests is evasive or incomplete

responses. These leave the requesting party unable to determine whether the responding party
has agreed to produce all of the requested documents, when production will be made, how it will
be made, and once made, whether it is complete (Girard and Espinosa, 2010). One evasive
response is to indicate that initial document production may be supplemented if additional
documents are found. This position may sound reasonable but in practice it is employed to
deliberately withhold relevant records (Halperin, 1997). Another type of evasive response is to
provide only a subset of the documents requested and to indicate a limitation to the response to
the request by, for example, saying that there are no documents that exist with respect to the
matter the request addresses when, in fact, there are documents that are related to the matter
(Halperin, 1997).

The Federal Rules contain an express prohibition against evasive responses and provide

mechanisms to shift fees for the cost of enforcing compliance. These rules are seldom enforced
and, as a result, evasive discovery responses have become a routine tactic (Girard and Espinosa,
2010). Some of the reasons given for lack of enforcement of discovery sanctions include: 1) a
distaste for becoming involved in discovery disputes that litigants should be able to resolve
themselves; 2) a belief that litigants should seek sanctions against an adversary only when they
Fed. Rule Civ. P. 34(b)(1)(A).
Charles Wright, Arthur Miller and Richard Marcus. 8A Federal Practice and Procedure §2211.
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have been without fault in complying with discovery; and 3) a belief that the imposition of a
sanction embarrasses or humiliates the attorney or party and should thus be resorted to only in
extreme situations (Moss, 2009; Vairo, 1998). Other potential contributing factors include a lack
of judicial resources, including time, and the lack of a uniform approach by the federal circuits in
imposing sanctions (Girard and Espinosa, 2010; Golinsky, 1996).

A third abusive practice is the use of boilerplate objections to document requests. Parties

routinely object to virtually every request on the same grounds, including broad relevancy
objections, objections that requests are unduly burdensome, harassing or assuming facts not in
evidence, privacy objections, and attorney-client and work product objections (Girard and
Espinosa, 2010). A document production request may be met with a dozen or more objections,
regardless of whether the responding party agrees to produce documents.
The requesting party
cannot ascertain whether any documents are actually being withheld on the basis of any of the

A fourth predatory practice is for the party who has been requested to produce documents

to seek a protective order. The reasons sometimes offered in a request for protective order are
that the information sought would reveal a trade secret and/or the request is oppressive, harassing
and unduly burdensome. Protective orders that are granted assist defendants by delaying the
release of various documents, keeping harmful information away from the opposing side, and
requiring requesting attorneys to spend time negotiating complex provisions (Halperin, 1997).

A fifth abusive technique is a document dump. A responding party provides thousands

and thousands of pages of poorly organized documents to the requesting party. Sometimes the
In Cason-Merenda v. Detroit Med. Ctr., 2008 U.S. Dist. LEXIS 94028 (E.D. Mich. Nov. 12, 2008), various
defendants lodged numerous “general objections” to a specific document request. The court overruled the
objections and ordered production of the requested documents.
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responding party will bury relevant documents within huge stacks of irrelevant documents the
other party never requested. Another technique is to fail to produce document indices that help
the requesting party review the documents even though such indices exist (Halperin, 1997).
Tactics to Fight Predatory Discovery

Numerous tactics can be used to respond to predatory discovery practices. These

responses include adopting a collaborative or team approach (i.e., working very closely with
counsel), making a good record, insisting on a privilege log, seeking protective orders and the
appointment of a special master, and seeking sanctions.

Adoption of a collaborative or team approach yields three major benefits to the discovery

abuse victim. One benefit is that these tactics may help counsel obtain the evidence needed to
win the case. A second benefit is that evidence of discovery abuse may be used as evidence of
bad faith in cases involving punitive damages. Moreover, a litigant who obtains a ruling that the
opposing party deliberately withheld documents may present that discovery misconduct ruling to
the court as further evidence of bad faith (in seeking punitive damages). A third benefit is
obtained by building a case of discovery abuse using a theory of a “discovery fraud scheme.” If
the opposing party is perpetrating a discovery “fraud” scheme, then evidence of the entire
scheme must be exposed to use it against the other party at trial.
Using a Collaborative or Team Approach

The great Chinese warrior Sun Tzu said, “Know thy self, know thy enemy. Victorious

warriors win first and then go to war, while defeated warriors go to war first and then seek to
win.” In that spirit, seizing the initiative by using a collaborative or teamapproach is the single
most important step that can be taken by the attorney and forensic accountant. First, the forensic
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
accountant should meet with counsel, establish discovery objectives, and obtain all documents
and other evidence already in the possession of the client. Some evidence, not in document
form, may be gleaned through interviews of various persons. The forensic accountant skilled in
interviewing and interrogation should prove invaluable to counsel. Completion of these first
three steps permits the litigation team to decide how much and what type of additional evidence
is needed to satisfy the discovery objectives. Also, the litigation team is now in a more informed
position to prepare a work program. An initial step in the work program should entail collecting
data on opposing counsel.

The forensic accountant, possibly with the guidance of counsel, should collect as much

information as possible on the litigation work habits, style, and practices of opposing counsel.
The cost of these services most likely would be paid by the client but could be charged at a lower
rate than traditional litigation support services. Such knowledge can assist in speculating about
the kind of discovery abuse, if any, to expect from the opposing side. The extent of this
knowledge can range from the superficial to the in-depth. One means of compiling data is for
the forensic accountant to observe opposing counsel performing direct and cross-examinations,
lodging objections, and engaging in opening and closing arguments at trial to develop an
understanding of his or her litigation techniques and practices. Another means of gaining
knowledge is to talk with lawyers who have litigated against opposing counsel. A third means is
to review trial court files for several cases handled by opposing counsel. Such an examination
may reveal the types of motions opposing counsel favors. A litigation file review should also
provide insights into opposing counsel’s approach to discovery practice. Moreover, such a file
review should focus on cases in which the opposing attorney has been sanctioned for
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
misconduct. Showing that opposing counsel has been previously sanctioned for the same type of
misconduct that occurs in the current case is a powerful tool in combating discovery abuse.

If possible, answer such questions as what types of objections, if any, did counsel raise to

various interrogatories? Did counsel file any motions for a protective order? Did counsel do a
document dump or engage in other abusive discovery practices? Did counsel ever refuse to
comply with a court order? These are just a few of the many questions that could be answered
by investigating the opposing attorney.

Before commencing the discovery process, it may also be advisable to collect as much

information as possible about the opposing litigant—individual, business (partnership or
corporation), non-profit, government agency or other entity (e.g., trust). When a business is the
opposing litigant, the litigation team should gain an understanding of the following areas:

1. the nature of the entity’s business, industry, competition, market share, and major

suppliers and customers;

2. the entity’s capital and/or financing structure (including bank accounts maintained and

how and for what purpose they are used, information about investment accounts, etc.) if the data
is available without legal process;

3. the entity’s organizational structure including parent, subsidiaries (domestic and

foreign), joint ventures, etc.;

4. the entity’s regulatory environment (publicly available documents such as Form 10-K

can be excellent sources of information);

5. the flow of funds through the business;

6. nature of the decision-making process at the executive level;

7. production methods (if relevant);

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8. purchasing methods, e.g., contract, bidding (if relevant);

9. employee compensation methods, e.g., salary, hourly, commission, etc. (if relevant);

10. accounting information system and internal controls and accounting records



the forensic accountant’s understanding will focus on these and other


How is the type of transaction initiated and authorized? What processing

steps are involved? Who performs these procedures?

What records and documents are involved? How are documents filed and

stored? How are they completed? If they are completed electronically,
who are the individuals with access?
11. the identity of related parties, if any; and
12. the types and amounts of insurance coverage in the event that the subject litigation
may involve the potential payment of damages (if liability is established).
A forensic accountant should identify the personnel who have influence over
whether and how to respond to discovery requests and what type of discovery requests may be
forthcoming. Knowledge of key personnel might help the forensic accountant identify potential
witnesses and/or deponents.

Financial statement analysis should be undertaken to determine the financial condition of

the opposing litigant—business entity or otherwise. Financial statement analysis would reveal
whether the litigation opponent is in financial distress. The presence of financial distress may
affect the pressures or motives of a litigant during the discovery process.
Journal of Forensic & Investigative Accounting
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Adoption of a collaborative or team approach also entails using precise discovery

requests. Use of an industry expert or forensic accountant is vital in preparing precise discovery
requests, particularly when seeking financial documentation or data. Precise discovery requests
reduce the legitimacy of the objection that the request is “unduly broad” and force the opposing
side to offer precise or specific objections if the objections are to withstand judicial scrutiny.
Moreover, precise discovery requests may have a higher likelihood of surviving a motion for a
protective order from the opposing side than would requests that are not as precise.

A collaborative or team approach also entails quick responses to any delays, omissions,

incomplete responses, etc. Some discovery abusers try to run the clock out (by waiting until the
last minute to respond to interrogatories or requests for production) to force the other party to
conduct depositions without adequate background information. Responding quickly is not often
a simple matter. Attorneys may have heavy case loads and it may take considerable time to
analyze responses to interrogatories and requests for production.

The litigation team may think of and treat discovery abuse as a fraud scheme. Discovery

abuse, such as withholding documents, may, under certain circumstances, especially in
combination with other misconduct, constitute “fraud on the court.”
Arguably, a litigant and/or
litigator who withholds documents during pretrial discovery may engage in other abusive
A “fraud on the court” occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently
set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to
adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing
party’s claim or defense. Since corrupt intent knows no stylistic boundaries, fraud on the court can take many
forms. Aoude v. Mobil Oil Corporation, 892 F. 2d 1115 (1
Cir. 1989); Alexander v. Robertson, 882 F. 2d 421 (9
Cir. 1989).Examples of withholding documents during pretrial discovery being part of a fraud on the court include:
Skywark v. Isaacson et al., 2000 U.S. Dist. LEXIS 1171 (S.D.N.Y. Feb. 8, 2000) (plaintiff’s conduct included lies
under oath, delays and through concealment by deliberate extraction of requested medical records evidence of
malingering and a possible bribery attempt to inflate the value of a claim); Penthouse Int’l. Ltd. v. Playboy, 663 F.
2d 371 (2
Cir. 1981) (plaintiff refused to produce certain records in violation of a court order and where false
testimony, material misrepresentations by counsel and foot-dragging were used to prevent defendant from getting at
relevant records).
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conduct. Moreover, discovery abuse may be deemed “bad faith” by a court under certain

Document or evidence withholding during discovery may take these forms:

1. Sanitized document or data production — involves removal of data or facts detrimental

to the party’s case. This scheme leaves the perpetrator vulnerable to having to explain the
absence of documents. Policy and procedure manuals may require inclusion of various types of
documents not found in a file.

2. Intentionally incomplete production — entails leaving out or omitting any record of key

facts, meetings, emails, or phone calls between important players in the case

3. Unbalanced production — involves creating documents and/or data that favor the

responding party’s side of the case (e.g., denial of insurance coverage).

A common sense reaction to suspected withholding during discovery is a careful

inspection of documents that are produced. First, the investigator can look for references to
withheld documents. Many documents, e-mails, and other data cross-reference each other,
permitting the accountant to construct an audit trail of documents. The use of diagrams and
flowcharts illustrates the flow of documents and relations between them. Although the
relationship between some documents is subtle, an experienced forensic accountant can often
make the connection to a missing document.

Another part of deflecting discovery abuse is fashioning a framework from the outset in

which predatory misconduct is discouraged and barriers to it are erected. An attorney should
An example of an incomplete file and how its exposure can be used against the offending party is:
Was a meeting held? Probably. Somebody picked up the phone, set a meeting,
and nobody put their notes in the file. It was “of the record” so they could speak
freely without fear of later cross-examination. The opposing attorney could have a
field day with an intentionally incomplete file (Williams, 2001)
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Vol. 6, Issue 2, July – December, 2014
work with a forensic accountant and obtain the trial court’s assistance in imposing restrictions on
discovery. Since trial judges dislike monitoring discovery, a special master or discovery referee
may be enlisted by the court (Shugrue, 1997). Such a master can hold regularly scheduled
hearings to address ongoing discovery disputes as they occur. In addition, a litigant can request
that the losers of motions involving discovery abuse pay costs and fees.
Making a Good Record

A second tactic in combating abusive discovery involves making a good record.

Attorneys and forensic accountants should meticulously monitor deadlines and ask for
extensions only when necessary. An attorney and forensic accountant should keep a spreadsheet
of all discovery requests, motions, and the status of each request and motion. This tactic also
requires the documentation of abuse by creating correspondence describing the other side’s
failure to follow the rules (Jenner, 2002). The pursuit of a “meet and confer” process establishes
a litigant’s reasonableness in the face of discovery abuse. This approach provides a court a
middle ground to resolve a dispute (Shugrue, 1997).
Providing a Privilege Log

A third tactic is to insist that the opponent provide a “privilege log.” This lists the

documents the opposing litigant refuses to produce on the basis of a legally recognized privilege
or work product doctrine under Rule 26(b)(5). The log must describe the nature of the
documents or items not produced without revealing privileged or protected information but
permitting other parties to ascertain whether the claim is legitimate.
Also, counsel may request
an in-camera review of documents withheld due to a privilege claim. One abuse maneuver is to
Leach v. Quality Health Servs., 162 F.R.D. 499 (E.D. Pa. 1995); In re Unisys Corp. Retiree Med. Benefits ERISA
Litig., 1994 WL 6883 (E.D. Pa. Jan. 6, 1994).
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
insulate employees and attorneys from discovery by claiming that the shielded work is in
anticipation of litigation (work product rule).
Protective Orders

A fourth step is to seek a protective order from the trial court. Given the abusive conduct

that may occur in depositions (and especially if investigative work reveals that opposing counsel
is a “Rambo litigator”) obtaining a protective order that sets limits on the lengths of depositions
and establishes payment obligations and other conditions for violations (Jenner, 2002) might be
prudent. Some jurisdictions have local rules that place time limits (beyond those contained in the
Federal Rules) on various forms of discovery. One common abusive maneuver is to ignore
interrogatories, document production requests and requests for admission to force the other side
to proceed to deposition without proper preparation. A protective order can overcome or shield
against these predatory practices. Another favorite abuse maneuver is a document dump on the
eve of a hearing on a motion to compel production. Keeping in mind that Rule 34(b)(2)(E) states
that a responding party “must organize and label them to correspond to the categories in the
request,” and Rule 33(c) indicates that a “responding party has the duty to specify” the records
from which answers to interrogatories may be derived, a protective order obtained beforehand
may provide additional protections against such abuses.
Seeking Sanctions

The most potent tactic is to seek sanctions for predatory discovery. Federal courts have

ample authority to impose sanctions under Federal Rule of Civil Procedure 37, including the


directing that matters embraced in a court order be taken as established for purposes

of the lawsuit;
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014


prohibiting the discovery abuser from supporting or opposing designated claims or

defenses on introducing certain evidence;


striking pleadings in whole or in part;


staying further proceedings until a court order is obeyed;


dismissing the action in whole or in part;


rendering a default judgment against the abusing party;


treating as contempt of court the failure to obey a court order except the failure to

submit to a physical or mental examination; and/or


ordering expenses to be paid by the misbehaving party.

Despite the existence of the authority to impose sanctions, many federal courts
do not enforce the civil discovery rules in this way (Girard and Espinosa, 2010; Mehr, 2012).
Moreover, many attorneys do not seek to enforce compliance with discovery rules and orders
through sanctions (Girard and Espinosa, 2010). According to one recent study, discovery
sanctions were sought in only about 3 percent of cases and of those filed, only 26 percent are
granted in whole or in part (Institute for the Advancement of the American Legal System, 2009).
Hence, it is essential to combine forensic accounting strategy and techniques with anti-abuse
tactics to improve the discovery process in forensic accounting litigation.
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
Legal disputes offer opportunities for parties to an action to abuse provisions of the law,
especially in the area of discovery. Forensic accountants are particularly qualified to work with
attorneys to help reduce the harmful effects of attempts to abuse the discovery process. The best
defense is to be aware of the techniques that abusers use to frustrate the system and to take
proactive steps to lower the likelihood that such abuses, when attempted, are thwarted. These
steps include approaching the legal action with a predetermined plan: gathering information
about the practices of opposing counsel, collecting information about the opposing party,
enlisting the aid of a special master or discovery referee, examining documents with skepticism,
and documenting discovery abuse when encountered. In addition, the forensic accountant can
assess the relevance of documents already in the possession of the client, determine the identity
of documents needed as evidence, and examine documents received. The attorney can increase
the chances that the discovery process works as the law intends by insisting that the opposing
counsel provide a privilege log, seeking protective orders, and sanctions should discovery abuse
occur. Taking these steps will increase the odds of resolving actions in a manner that is fair and
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
Appendix A
Improper Objections
Proper Objections
If you recall
Leading question
Do not guess
The witness does not understand the question
Compound question
I do not understand the question
The item speaks for itself
Form of the question
Calls for a legal conclusion
Calls for a narrative
Asked and answered
Assumes facts not in evidence
Sources: Alford et al.(2010); In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998).
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
Alford, H., J. Ebanks, S. Goldman, M, Karp, and J. Ortega. 2010. Dealing with the Difficult Lawyer. Federation of Defense and Corporate Counsel Quarterly (Spring 2010): 279-294.
Crumbley, D.L., L.E. Heitger, and G.S. Smith. 2013. Forensic and Investigative Accounting, 6th ed., ¶ 8006, 8-5. Easterbrook, F. 1989. Discovery as Abuse. Boston University Law Review 69: 635-648.
Epstein, R. 2007. Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments. Washington University Journal of Law & Policy 25: 61-99.
Flegal, F. 1982. Discovery Abuse: Causes, Effects, and Reform. Review of Litigation 3: 1-7. Girard, D. and T. I. Espinosa. 2010. Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal Rules. University of Denver Law Review 87: 473-484.
Glover, J.M. 2012. The Federal Rules of Civil Settlement. New York University Law Review 87: 1713-1778.
Golinsky, J. 1996. The Second Circuit’s Imposition of Litigation-Ending Sanctions for Failures to Comply with Discovery Orders: Should Rule n37(b)(2) Defaults and Dismissals Be Determined by a Roll of the Dice? Brooklyn Law Review 62: 585-662.
Halperin, D. 1997. Discovery Abuse: How Defendants in Product Liability Lawsuits Hide and Destroy Evidence. Congress Watch, found at
Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
Hare, F.H., J. Gilbert and S. Ollanik. 1995. Full Disclosure: Combatting Stonewalling and Other Discovery Abuse, 2nd edition.
Institute for the Advancement of the American Legal System. 2009. Civil Case Processing in the Federal District Courts. University of Denver.
Jenner, R. 2002. How to Attack Discovery Abuse. Trial 38(2): 28-33.
Kim, J.Y. and K. Ryu. 2002. Sanctions in Pre-Trial Discovery. European Journal of Law and
Economics 14: 45-60.
Lee, E. and T. Willging. 2010. Attorney Satisfaction with the Federal Rules of Civil Procedure.
Federal Judicial Center.
Luria, A. and J. Clabby. 2005. An Expense Out of Control: Rule 33 Interrogatories After the Advent of Initial Disclosures and Two Proposals for Change. Chapman Law Review 9: 29-49.
Mehr, D. 2012. Excessive or Warranted? The Unshackling of Discovery Sanctions in Lee v. Max International LLC. Brigham University Law Review 2012: 607-621.
Moss, S. 2009. Reluctant Judicial Fact-Finding: When Minimalism and Judicial Modesty Go Too Far. Seattle University Law Review 32: 549-567.
Rennie, D. 2011. The End of Interrogatories: Why Twombly and Iqbal Should Finally Stop Rule 33 Abuse. Lewis & Clark Law Review 15: 191-263.
Sinclair, K. 2008. Sinclair on Civil Procedure, 5th ed. §9:1, 9:1.2.
Shugrue, J. 1997. Identifying and Combating Discovery Abuse. Litigation 23: 10-17. Journal of Forensic & Investigative Accounting
Vol. 6, Issue 2, July – December, 2014
Vairo, G. 1998. Rule 11 and the Profession. Fordham Law Review 67: 589-648.
Chicago Law Review 75: 911-940.








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Abuse & Neglect The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

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We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of AssemblyPeaceful Assembly1st Amendment Right

We also have the Brayshaw v. City of Tallahassee1st Amendment Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019)1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

Freedom of the Press Flyers, Newspaper, Leaflets, Peaceful Assembly1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment


Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Penal Code 118.1 PCPolice Officer$ Filing False Report$

Spencer v. PetersPolice Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PCFiling a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse AllegationsFamily Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee RecoveryClick Here

Zamos v. StroudDistrict Attorney Liable for Bad Faith ActionClick Here

Mi$Conduct Pro$ecutorial Mi$Conduct


Attorney Rule$ of EngagementGovernment (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & ProsecutorRules of Professional Conduct

Functions and Duties of the ProsecutorProsecution Conduct

Information On Prosecutorial Discretion

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct JudiciaMi$Conduct


Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial OfficerC.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial PerformanceJudge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242Deprivation of Right$ Under Color of Law

18 U.S. Code § 241Conspiracy against Right$

Section 1983 LawsuitHow to Bring a Civil Rights Claim

 Suing for MisconductKnow More of Your Right$

Police Misconduct in CaliforniaHow to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence
from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?




Family Law AppealLearn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment

Amdt5. – Parental and Children’s Rights
5th Amendment

9.32 Interference with Parent / Child Relationship
14th Amendment

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases


Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C)Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular RightsFourteenth AmendmentInterference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate?Reason for Joinder

Joinder In Family Law CasesCRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M


Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. EldridgeDue Process – 5th & 14th Amendment Mathews Test3 Part TestAmdt5. Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts  1st Amendment
so if you are interested in learning about 
Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDAClick Here

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 


Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case InformationClick Here

Texts / Emails AS EVIDENCEAuthenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior CourtReleasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of AdmissibilityEvidence Admissibility

Confrontation ClauseSixth Amendment

Exceptions To The Hearsay RuleConfronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty


Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get StartedClick Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in LimineWhat is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PCCertificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act851.87 – 851.92  & 1000.4 – 11105CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in CaliforniaPenal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a MisdemeanorPenal Code 17b PC Motion

 Epic Criminal / Civil Right$ SCOTUS Help Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors


Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.