Wednesday, August 27, 2003

Failure to cooperate on discovery means no discovery sanctions against opponent

Last week's ABA Journal has this story about an appellate decision, the gist of which is that a plaintiff's lawyer who aggressively sought discovery without cooperating with the other side would not be allowed sanctions for discovery violations by the opponent.

I have not litigated too many discovery motions in recent years, partly because I am determined to make a strong record in advance before any such motion and partly because the court-ordered results of discovery motions are often unsatisfactory - the Court is often in the worst position of anyone to figure out enough about the case to know what is reasonable and what isn't.

One discovery motion that I contested some years ago, that generates the occasional telephone call and gets cited every now and then (sometimes against me), is described in a published opinion, Terwilliger v. York Intl. Corp., 176 F.R.D. 214 (W.D. Va. 1997), in which the Court recognized limits on the right to discovery of some kinds of private information about an individual plaintiff.

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