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Friday, August 17, 2007

Sanctions, Sanctions, Sanctions

The Minnesota Rules of Civil Procedure provide for monetary sanctions where a party abuses the discovery process. Far too often, however, whether action (or most often inaction) constitutes abuse of the discovery process results in a quibble among the parties. With the caseload our Minnesota judges have, it is unsurprising that they are usually loath to resolve these quibbles among the parties. If the judge neither has the time nor inclination to dig into the substance of the discovery dispute, how can one capitalize on the sanctions provided for under the Minnesota Rules of Civil Procedure? There are many methods available, but the following list is an approach I have taken and been quite successful:

1. Avoid the scorched earth approach to discovery - Judges and attorneys see right through it. If you ask for everything under the sun, don't be surprised when the judge expresses discontent and releases a loud sigh. Remember, focus on the main issues, if those issues reveal tangential issues follow up with additional discovery.

2. Voice your discovery concerns immediately – Send correspondence to opposing counsel. This creates a written record of every conversation, email, agreement and concern. When the time comes for a motion to compel, you'll need a record to support whatever remedy you seek.

3. Be honest, reasonable and honor your discovery obligations - Judges hate nothing more than attorneys who complain that opposing counsel has not met discovery obligations all the while the complaining attorney has not honored hers. As for honesty and reasonableness, these considerations need not be explained.

4. The Motion to Compel - After you have gotten nowhere through correspondence, emails, telephone calls and other devices, schedule a motion to compel. Disclose the hearing date to opposing party as soon as it is scheduled. Remain willing to remove the hearing from the Court's motion calendar if opposing counsel answers the deficient discovery before your brief is filed. If discovery remains deficient proceed to the hearing. At the hearing explain why the omitted discovery is necessary for your claim or defense. In practice, whether or not it is technically discoverable has more to do with the academics of discovery than it has to do with practical discovery.

These tips should help you capture the discovery you need, and in some cases, recover the expense for your efforts.

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