Recent news in South Florida tells the sad story of a law firm involved in the defense of a major fraud case on behalf of a well-known local bank which was slammed with a $67 million jury verdict after trial. If that wasn’t bad enough, after the verdict came down, it came to light that the bank failed to produce certain critical documents which plaintiff’s counsel believed would have altered the verdict and made plaintiff’s award even higher had the Jury seen them. If you were the lawyer responsible for supervising and implementing the document production in this case, and this issue came to light after the trial, there may be only one thing left for you to do – quit your job. How could you prevent such a debacle? Read on.
- The Dreaded Document Request
There is probably nothing that a litigator likes less than receiving the dreaded “Request for Production.” The reason is that the receipt of this document by counsel virtually guarantees that the lawyer, and his or her law firm, will be embroiled in the drudgery of responding to the request. Let’s face it, document productions are not fun. Document productions are what you send junior associates to do who are clamoring for jobs and name recognition within the law firm. The problem is that when you send a junior associate to do a document production you risk the associate missing something important. Here are some general guidelines and things to consider when responding to document requests.
- Understand and Accept that Your Client Will Be Unhappy
As much as a lawyer does not want to receive a document request, your clients don’t want to receive one either. Accept the fact that your client will be unhappy. Accept the fact that part of your client’s unhappiness will be focused at you. Because, after all, if you had won the case within the first 30 days, like your client thought you should, there would be no need for a document request and no need for your client to respond to one. What the lawyer needs to understand is that clients are people just like lawyers. Notwithstanding the fact that much litigation concerns business matters, for the client, there is also an emotional component to litigation. It is common for many clients to respond to the lawyer, when presented with a document request, by saying something like this: “Why do I have to respond to their document request when they were the ones that breached the contract?”
These types of questions often force the lawyer to launch into a soliloquy about the justice system, discovery and fairness. Some clients understand the lawyer’s speech, and resign themselves to the necessity of responding to documents requests, but others do not. Some clients, the passive-aggressive ones, simply listen to your speech while thinking silently to themselves – “I don’t care what this guy says, I’m not going to give these documents to my lawyer.” This is the client you have to identify in advance. This is the client whose concerns must be addressed immediately.
In this circumstance, the fact that you and your client start off on the same side starts to change. Now, suddenly, you and your client are adversaries. Is a junior associate equipped to deal with the client’s emotional reaction to the service of a document request? Not a chance. The last thing that the young associate wants to do is tick off the client. The worst thing that could happen to the associate is that the client calls the partner to complain about him or her. This could be the death knell to the associate’s tenure at the firm. Thus, the natural tendency on the part of young associates is to accept the client’s explanation about the location and volume of relevant documents and move on thinking happily to themselves that the client is a satisfied customer.
But the partner should know better. The partner should know that the client is holding documents back. The partner should know that the firm’s client has emotional issues with the other side and wants to make the other side unhappy. The partner should ask the client: “How is it possible that this particular category of document do not exist?” “Are you sure?” “Can I look in your filing cabinets?”
The partner should explain to the client the consequences of not producing relevant documents. In certain cases it can be the cause for a new trial and the client’s legal fees can double or triple as a result. In other cases, like the example cited above, it can cause the lawyer and the client to be sanctioned. It can cause a sixty-seven million dollar award to turn into a seventy-seven million dollar award. As a result, it is best to follow the familiar adage – honesty is the best policy.
The purpose of this article is not to suggest that there is no role for junior associates in document production. The point is that their work must be supervised. So when the young associate gathers the materials, prior to production, someone at a senior level should really look at the documents which are being produced.
- The Lawyer Should Interview The Client’s Employees
Oftentimes the point person that the partner deals with on a day to day basis concerning the litigation is not necessarily the person who is the custodian of the documents. Therefore, a useful tool in your initial conversation with your client would be to have that client identify which employees are keeping the records. Employees generally tend to be less concerned about the emotionality of litigation (“Hey, I just work here”). One of the employee’s jobs is to make sure that the lawyer is happy so that the lawyer does not call the employee’s boss and say that the employee is not being helpful. Accordingly, one of your best resources as a lawyer is to speak directly with the client’s employees and interview them about their document retention policies and where the documents are located. This arduous task will likely save you time and effort in the long run.
You should also consider keeping notes about the efforts that you undertook to search for documents. This is because, one day, when another lawyer files a motion for sanctions against you, and claims that you deliberately withheld production, or you did not look for the requested documents, you can detail for the court the steps you took to make sure that this did not happen. Certainly, the lawyer in the bank case referenced above would find this helpful at the upcoming hearing on sanctions.
- How Lawyers Win Cases With Discovery
You may not realize this but a lawyer with a bad or mediocre case can win the case based upon discovery violations. These lawyers manifest their game plan by filing multiple, overbroad request for production and then moving to compel repeatedly until they find something you missed. Then comes the motion for sanctions; then comes the motion for default or the motion in limine. These lawyers are not litigating the case – they are litigating the discovery violations. Often this is done because the lawyers don’t really have a case or they have doubts about it. Sometimes, however, it is easier to litigate a motion for default then to have to endure a trial. This is particularly true in cases involving lawyers who handle cases on contingency. To them, cases can be mostly about money. The more time and effort they spend investing in their case, the less money they will earn. Accordingly, their goal is to get a quick hit at your expense. Consider the options set forth above in order to avoid this — be diligent, don’t trust your client or your adversary and, most importantly, protect yourself.
The point is that the innocuous document request you receive is fraught with peril. It can be the source of much consternation, finger pointing and general unhappiness for you, for your client, for your associates and even for the Judge. A skilled lawyer is able to manage this unhappiness and make certain that the document production is handled professionally so that everyone can sleep at night.
 There may be some countervailing authority to suggest that lawyers are not really people but that is the subject of another article.