This article explores ethical options that are available to address three specific discovery phase litigation problems: trolling pleadings, discovery stonewalling, and sham disclosures, all of which can unreasonably increase the cost and complexity of litigation if not handled deftly. It will review ABA Model Rules of Ethics obligations related to these issues and examine how to use applicable Federal Rules of Civil Procedure, scheduling orders, discovery, and sanction motions to deter these unethical pretrial practices.
I. Trolling Pleadings
Out of the blue, your long-time construction client calls to advise they are being sued in a state where they rarely or never do business, having been served with pleadings making vague allegations that they have violated a federal law that has little to do with the construction services they provide. The pleadings, which sound canned, contain few specific facts about your client’s alleged wrongful activities, but they command your full attention when you see a demand for statutory treble damages plus attorney fees.
A quick search at the state (or national) level reveals this ubiquitous plaintiff and a less-than-fully ethical law firm have asserted dozens, if not hundreds, of similar claims like those alleged against your client. Each seeks to recover a modest amount of damages from a defendant incentivized to settle to escape a far more costly and burdensome process of extricating themselves on the merits of the claim.
This practice of using boilerplate pleadings to target defendants, seeking to compel a swift settlement to avoid costly litigation, is known as trolling. A strategy first employed in the 1990s in intellectual property litigation, trolling has been used by creative, conniving lawyers in a wide range of legal contexts. Typically, these attorneys work to secure numerous small settlements, thereby generating a significant revenue stream for the plaintiff and them. Often, they involve state or federal statutes that include judgment multipliers and award of attorney fees to successful parties, like the sanctions authorized by the Americans with Disabilities Act for failing to provide persons having disabilities with comparable access to commercial websites. These unscrupulous firms develop boilerplate pleadings and then go in search of defendants, typically seeking just enough in damages that the claim cannot be ignored, but not so much that defense in an inconvenient jurisdiction is remotely cost-effective. Also known as “drive-by lawsuits,” the options for resolution are limited: caving in to the claim or moving forward with costly litigation, though the trolling law firm is rarely truly interested in litigating the claim substantively. Instead, the trolling firms use the pleadings as a threat, followed typically with an early settlement offer at a price that is significantly less than trying the case.
A. The ABA Model Rules of Ethics Relevant to Trolling Pleadings
Trolling is not expressly mentioned in or outright barred by the ABA Model Rules of Ethics (hereafter ABA Model Rules). There are, however, several ABA Model Rules supporting ethical defenses against trolling litigation.
First, at the core of all pleading obligations is an ethical duty to assert claims that have substantive merit. ABA Model Rule 3.1, Meritorious Claims & Contentions, provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Note (1) to this ABA Model Rule further requires:
The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.
Some state ethics codes have their own variations of the ABAModel Rules that provide additional support for arguments seeking to dismiss abusive trolling. For example, Wisconsin’s Supreme Court Rule 20:3.1(3) expressly provides that “claims, defenses and other actions on behalf of the client cannot be taken merely to harass or maliciously injure another.” New York’s code analog to ABA Model Rule 3.1 further defines conduct that is non-meritorious:
(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:
(1) the lawyer knowingly advances a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law;
(2) the conduct has no reasonable purpose other than to delay or prolong the resolution of liti gation, in violation of Rule 3.2, or serves merely to harass or maliciously injure another; or
(3) the lawyer knowingly asserts material factual statements that are false.
Keeping ABA Model Rule 3.1 in mind as a baseline for attacking non-meritorious pleadings, it is important to use a systematic approach to decisively respond to trolling claims.
B. Defense Options for Trolling
First, when presented with litigation that you believe may be trolling, begin by checking for other cases asserted by the same plaintiff and counsel. Take note of defense counsel who have appeared in these companion cases. You may have the good fortune to locate defense firms with prior experience handling the particular trolling suits asserted by this plaintiff or their counsel. These defense counsel often will have discovery and common law research already prepared courtesy of handling similar lawsuits and, as such, will be able to more cost-effectively defend against the claims.
Next, an initial approach for attacking trolling pleadings often starts with Federal Rules of Civil Procedure (Fed. R. Civ. P.) 8(a)(2), General Rules of Pleadings: “A pleading that states a claim for relief must contain a short and plain statement of the claim showing the pleader is entitled to relief.”
If it is unclear what your client has done that purportedly violates the statutes or rules relied on in the pleading, a first line of defense should be to ask for clarification from opposing counsel about the specific acts, errors, or omissions that form the factual basis of their case against your client. Fed. R. Civ. P. 12(e), Motion for a More Definite Statement, provides the process for asserting such a motion:
(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
Since the goal of plaintiff’s counsel in trolling litigation is to compel settlement as swiftly as possible, legitimate requests or motions to make definite and certain under Fed. R. Civ. P. 12 will require them to engage in activities that would reduce their net recovery. Timing an offer of settlement to defense counsel such that it would be in lieu of responding to the compelling of more specific pleadings may help to persuade the plaintiff to resolve the case—or accept a more reasonable settlement amount.
If early settlement is not reached, and opposing counsel continues to fail to articulate facts with sufficient particularity to demonstrate a legitimate claim, Fed. R. Civ. P. 11(b) can be used by asserting the pleadings fail to state a substantive claim:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . .
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonf rivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .
Often, however, there is just enough merit in a trolling case that a Fed. R. Civ. P. 11 motion to dismiss for frivolousness would not be successful (for example, your client’s website does not have audio or narrative captions for photos depicting their previous construction project work, thus violating ADA equal access requirements). Where outright pleading dismissal is not possible, another defense that may be fruitful is to challenge subject matter jurisdiction when the claim has been brought in a state where your construction client does not have sufficient minimum contacts to be required to participate in its courts.
Fed. R. Civ. P. 12(b)(1) provides relief in foreign jurisdiction trolling cases by permitting subject matter jurisdiction to be challenged via affirmative defense or by motion:
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject matter jurisdiction. . . .
“A case is properly dismissed ‘for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate it.’” Long-established federal procedural law requires minimum contacts with a jurisdiction such that the maintenance of a suit in the state “does not offend traditional notions of fair play and substantial justice.” This federal “minimum contacts” analysis, adopted by many state courts, looks to the defendant’s contacts with the forum state, and not the defendant’s contacts with the persons who reside there and are asserting claims. A plaintiff’s “unilateral activities cannot support a finding of personal jurisdiction over a defendant.”
Strategically, the goal of such a motion to dismiss on jurisdictional grounds is to force the plaintiff to remove the case to a jurisdiction more cost-effective for your client to defend on the merits. This additionally may help reach a settlement, since it likely will not be as convenient or cost-effective for the plaintiff or their counsel to reassert litigation in your client’s home jurisdiction.
Responses to trolling pleadings require swift analysis to confirm trolling has, in fact, occurred. Yet, it is ultimately the client’s decision to defend or settle. Make sure the client understands the costs and fees necessary to attack pleadings as frivolous or to challenge jurisdiction, as compared to the cost to try the case on the merits of the claim, as well as those to acquiesce and negotiate a settlement, so they can make a well-informed decision. If the client’s choice is to settle, try to learn from local defense counsel with experience handling similar claims with the same plaintiff the range of previous settlement amounts. Also, make sure to consider outside-the-box settlement alternatives like in-kind offers of work or services, client business practice changes to meet statutory requirements, or charitable donations in lieu of payment to the plaintiff.
II. Discovery Stonewalling
When an opposing party has no real defenses to claims your construction client is asserting, their counsel may attempt to wrongfully burden and delay resolution of the case, hoping to wear your client down with added costs that will force them into accepting a settlement much lower than is supported by the evidence. Consider the following scenario.
Your client, a nice mom-and-pop remodeler, asks you to help them recover $30,000 for scope changes they concede were not properly documented by written, executed change orders. They have some emails and texts, but nothing that cleanly identifies offer, acceptance, and agreed-upon consideration for the extra work now installed in their client’s house.
The homeowners outright ignore your initial, polite demand letter that encloses backup invoices of actual change costs. Without better options, you commence a simple lawsuit alleging breach of contract and unjust enrichment. You recommend that your clients seek early settlement to try to keep the case cost-effective, making sure they understand the net profits on $30,000 of damages can get eaten up very quickly in litigation.
In your first contact with homeowners’ counsel, he advises that his clients “can be difficult sometimes” and sends you a long punch list (apparently prepared using a microscope, given the level of perfection they are seeking). The homeowners demand the punch list be completed before they will discuss the change claims. Your client arranges to have its subcontractors complete the work, but the homeowners continue to avoid discussing the change claims.
Concerned that the defendants are intentionally stalling, you use the pretrial conference in the case to ask the judge to set the matter on for early mediation, asking that the court select a mediator for the parties (so it is one fewer thing to argue about). You are pleased when the scheduling order appoints a retired judge with lots of trial experience and sets an early deadline for mediation to be completed.
A week before mediation is scheduled, you get an email from opposing counsel advising that he is undergoing rotator cuff surgery and will be taking painkillers that make it likely that he will need the mediation date changed. You, of course, accommodate this request as a matter of professional courtesy, and the two of you reschedule mediation four weeks later. On the morning of the rescheduled mediation, the mediator meets first with the homeowners and, after an hour, advises that they want timecards and more detailed cost information about the extras before they will proceed with mediation. Your client agrees to furnish them, and mediation is rescheduled by the mediator for a third time two weeks later. Your client promptly furnishes the records, but opposing counsel responds by advising his clients now are not available to return on the date previously agreed. You inquire about a fourth mediation date but get no response. You enlist the mediator’s aid in trying to set a new date, but the best the mediator can do is get an acknowledgment from the homeowners’ counsel that his clients “are now not willing to reschedule mediation at all.”
In absolute frustration, you file a motion to compel with the court, using the mediator’s email confirming the homeowners are refusing to return to mediation to demonstrate cause for seeking costs of the motion. The court looks at the deadline for mediation set in the pretrial scheduling order, sees it has not passed, and denies the motion, but warns opposing counsel that mediation must occur before the deadline to avoid future sanctions.
Just before the deadline to mediate expires, opposing counsel calls seeking to reschedule the mediation for a date three weeks after the court’s deadline “because he has other cases in trial.” When mediation finally resumes, the homeowners spend five minutes with the mediator and walk out without addressing either their claims or your client’s but have prolonged resolution of the case by months.
Stonewalling, or the abuse of discovery processes to delay and unreasonably increase the cost of litigation, is a subtler and more difficult issue to ferret out and resolve than trolling. Typically, a single instance of delay will not be enough, standing alone, to secure remedial action from a court. A pattern and practice of dilatory conduct will have to be demonstrated by affidavit, supported with documentary evidence of efforts to voluntarily compel compliance with scheduling order requirements, to support the court’s assistance when seeking sanctions for dilatory conduct.
A. ABA Model Rules of Ethics Applicable to Dilatory Discovery Activities
Unsurprisingly, the ABA Model Rules set a contextual standard of reasonableness as the benchmark of prudent conduct in expediting litigation. ABA Model Rule 3.2, Expediting Litigation, provides: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Evidence of dilatory conduct, through action or omission, must demonstrate intent to “frustrate rightful redress.” Comment 1 to this ABA Model Rule explains:
Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.
Courts are given wide latitude in fashioning appropriate sanctions for dilatory discovery conduct. For smaller infractions, they may simply grant an extension of time for proper production or compliance, or shift costs or fees related to the specific wrongful discovery activity. For prolonged delay, after multiple opportunities to cure granted by a court, they may limit testimony or evidence that may be introduced or, in egregious cases, dismiss defenses or an action outright. In granting such a dismissal for discovery abuses in a federal action, four factors are considered:
(1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.
B. Options for Ethically Addressing Discovery Stonewalling
Often, counsel is faced with delay that appears legitimate when examining individual incidents separately. It is only the ongoing pattern and sequence of delays that might form a basis for alleging stonewalling. To obtain relief from a court, you will need to keep detailed records of your interactions with opposing counsel, ideally confirming telephone or in-person exchanges in writing and detailing agreed-upon scheduling, and later cancellations or other discovery deficiencies. Where available, it will be helpful to secure a written confirmation from the mediator that their efforts to illicit a new mediation date or other needed discovery production also failed.
A critical tool if you suspect dilatory evasion by an opposing party is to ask for an early or initial pretrial conference, coming prepared to ask that the court’s scheduling order includes short-tether deadlines that help deter dilatory conduct by the opposing party and their counsel. Consider, for example, asking the court for early mediation and have the court appoint the mediator so the parties do not waste time arguing over selection. Set bright-line deadlines for document production that allow for adequate time before mediation for review—and, if necessary, for supplementation. While some state courts have broad mandatory discovery exchanges that deter stonewalling, make sure the court sets a specific deadline for production of a damage summary, complete with supporting evidence of costs, and production of a list of lay and expert witnesses. Make sure the witness list deadline includes production of expert witness reports that fairly identify the expert’s expertise and all their opinions, including furnishing or summarizing any documents on which they relied in forming their conclusions.
Next, after you experience events that you think might be stonewalling, ABA Model Rule 3.4, Fairness to Opposing Party and Counsel, will be useful to cite when engaging in direct discussions with opposing counsel seeing to halt dilatory conduct:
A lawyer shall not: . . .
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
Many states have adopted ABA Model Rule 3.4 as written. States that have adopted a variation of ABA Model Rule 3.4, however, often have legislative history or case law interpreting their rule that can provide additional arguments to raise with opposing counsel when engaging in informal negotiations seeking an end to procedural delays. In directly confronting opposing counsel’s behavior and calling out their dilatory actions, the goal is to re-engage an opposing counsel who is negligently tardy so they return to actively resolving the case.
It will become quickly apparent when direct negotiations fail to illicit needed responsiveness that counsel is, in fact, intentionally manipulating pretrial process. In those instances, a next line of attack will be to use the court’s authority to direct production or compliance with the scheduling order by filing a motion to compel under Fed. R. Civ. P. 37:
Failure to Make Disclosures or to Cooperate in Discovery; Sanctions:
(a)Motion for an Order Compelling Disclosure or Discovery.(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.
Where delay takes the form of partially complete discovery production, it is helpful to confirm that to the court, according to Fed. R. Civ. P. 37(a)(4), which provides:
(a)(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
Also, make sure to be specific about the relief sought in the motion to compel and confirm it is well articulated in the court’s order to eliminate opposing counsel further prevaricating and producing a less than completely ordered response.
Finally, if wrongful delay and obfuscation continue beyond court-ordered deadlines, consider filing a motion for discovery sanctions. Fed. R. Civ. P. 16(b)(1)(A), as well as state analogues in those jurisdictions that have adopted a comparable rule, gives courts wide latitude in fashioning a “just” order related to failure to comply with the court’s scheduling order:
Rule 16. Pretrial Conferences; Scheduling; Management
* * *
(b) Scheduling.
(1) Scheduling Order. Except in categories of actions exempt by local rule, the district judge— or a magistrate judge when authorized by local rule—must issue a scheduling order:
(A) after receiving parties’ report under 26(f). . . .
That is then followed by, or combined with, Fed. R. Civ. P. 16(f)(1):
(f) Sanctions. (1)
In General. On motion or on its own, the court may issue any just orders . . . if a party or its attorney:
* * *
(C) fails to obey a scheduling or other pretrial order.
Counsel may seek a wide range of court sanctions for violation of pretrial orders, including shifting costs of production to the party violating prior orders, granting costs and fees of the motion to the movant, confirming the court may limit or preclude defenses if new deadlines are missed, or outright dismissal of affirmative defenses or claims altogether.
A particularly instructive decision regarding the shaping of appropriate sanctions for flagrant abuses of discovery obligations is Lafferty v. Jones. In Lafferty, the trial judge noted that defendants had violated numerous prior discovery orders and found that the defendant then personally had engaged in harassing and intimidating behavior directed at the plaintiffs’ counsel when granting sanctions on the motion to compel. Supporting its ruling, the trial court made a record of allowing the parties “numerous opportunities to mediate disputes and delineate their discovery obligations at discovery status conferences” and that the defendant had been granted multiple extensions to produce relevant discovery but, by the final deadline granted by the court, “[t]here hasn’t been a single piece of paper [produced] or interrogatory answered.” In upholding the trial court sanction dismissing defendant’s defenses in their entirety, the court of appeals reasoned:
It is well settled that a trial court “has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct ....” (“The inherent authority to administer judicial proceedings carries with it a corollary power to control those involved in court business—parties, witnesses, jurors, spectators, and lawyers—to maintain order, decorum, and respect. Sanctions have long been deemed imperative to protect against the disruption or abuse of judicial processes and to ensure obedience to a court’s orders, thereby preserving its authority and dignity.”) . . . [T]his inherent authority to sanction a party extends to sanctioning participants to litigation for engaging in threatening and harassing behavior. . . . Harassing and intimidating counsel so that they withdraw from litigating a case is beyond cavil; it is an unfair and inappropriate litigation strategy that strikes at the core of our system. We recognize that there is a place for strong advocacy in litigation, but language evoking threats of physical harm is not tolerable. . . . [W]e conclude that [defendant’s viperous public] speech could pose a threat to the plaintiffs’ ability to litigate their case, rendering it an imminent and likely threat to the administration of justice.
Even in jurisdictions that do not mandate it, judges generally want parties to informally seek to resolve their discovery issues before burdening the court with discovery motions, and they will be hesitant to compel production or impose discovery sanctions, including award of motion costs and fees, until after scheduling order deadlines pass. Essentially, you must establish that the flatly insufficient pleading or procedural failure defies any other inference than being part of a continuing pattern and practice interposed to delay, increase costs of litigation, or harass your client. Be sure to confirm in supporting affidavits the time for submittal under the court’s schedule order has passed, listing specific requirements with which the opposing party has failed per se to comply, or has so ineffectually complied as to furnish a purely illusory or frivolous response.
Note, if accurate, that opposing counsel has not made an informal request to you to extend the deadline for submittal. If the opposing party cannot meet their burden of proof without the missing production, it also may be possible to frame relief in the form of a dispositive motion seeking outright dismissal of the opposing party’s claims or defenses. Be prepared to demonstrate how the court’s resources are being unreasonably misused and note every prior failure to conform to ordered scheduling. Finally, in framing the relief you are seeking, precisely identify the rulings you ask the court to make, consistent with powers granted to the court under local sanction statutes or rules, including any request for recovery of costs and attorney fees of filing the motion.
III. Sham Pleadings
Another distressing area of discovery abuse is the submittal of sham pleadings. Consider the following example: The homeowners in your $30,000 remodeler litigation keep insisting that work is defective even after their original punch list items were corrected, so you look forward to seeing their expert reports, which are required to be produced with their witness list per the court’s scheduling order. You contact opposing counsel after he misses the deadline for production, and a week later, you receive a witness list naming nine witnesses, six of whom are designated as “experts.” The narrative description for each of their testimony is a boilerplate designation: “Will testify about [the homeowners’] home defects, repairs completed and the costs thereof, including why the [remodeler’s] work did not comply with industry standards.” You do not receive any expert reports.
You start contacting the designated experts to set up convenient times for their depositions. To your surprise, each one advises you they had no idea they had even been named in the case, much less that they have been asked to give expert testimony. Several are quite hostile and say they want nothing to do with the entire dispute. You talk to the rest of the designated experts and learn not one of them was retained, or agreed to serve, as an expert by the homeowners.
You contact opposing counsel to try to quietly ascertain the extent of his participation in the naming of these experts. He sends a sassy retort saying that the designation of experts by experience is permitted at common law in this jurisdiction and that you are obviously trying to harass his clients with another not-so-veiled threat of discovery sanctions. He sends his response by forwarding a string of earlier emails exchanged previously in the case, including a final email from his client that ends:
I want you to make sure this lawsuit becomes very expensive for [the remodeler]. I expect you to drive a new sports car as a result of the outcome in court.
Along with the careless breach of attorney-client privilege, your opposing counsel has made clear by his and his clients’ conduct that their expert witness disclosure is a complete sham, being interposed to unnecessarily add cost to resolution of the action.
During the discovery phase, courts will typically require the exchange of pleadings designed to clarify and provide supporting evidence about claims and defenses asserted in the case. These can include lay and expert witness lists, expert reports, and damage summaries with and without supporting financial records. Sometimes, however, opposing counsel or their client instead will use spurious pleadings specifically to frustrate the purpose of discovery and case resolution. They may, for example, intentionally fail to produce all relevant information required to be produced or produce it in a form that is difficult (or impossible) to read, search, or reuse; manufacture false evidence by cutting and pasting signatures or other data onto another document and recopying; or name a copious number of witnesses or experts that they never really intend to call. When sham pleadings are altogether lacking substance, having been interposed to delay or harass another party, there are several options for dealing with them.
A. Model Rules That Apply to Sham Pleadings
First, keep in mind that the Federal Rules of Civil Procedure require pleadings to be submitted by attorneys after undertaking due diligence as to the law and facts related to them. Fed. R. Civ. P. 26(g), Signing Disclosures and Discovery Requests, Responses, and Objections, provides, in pertinent part:
(1) Signature Required; Effect of Signature. . . . By signing, an attorney certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly bur- densome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
An opposing counsel cannot rely as a defense to sham pleading that they merely conveyed their client’s information without substantive vetting. As Comment 3 to ABA Model Rule 3.2, Expediting Litigation, makes clear: “The obligation to not assist a client in committing fraud applies to litigation.” Many states have adopted ABA Model Rule 3.2 as written, though, again, states having a variation in their code requirements can provide meaningful insights into the intent of this ABA Model Rule to preclude pleadings that have been wrongfully interposed.
When presented with evidence of an adverse party’s fraudulent conduct that has been assisted by their counsel, look to Model Rule 8.4, Misconduct, which confirms:
It is professional misconduct for a lawyer to:
. . .(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . . [or]
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. . . .
Additionally, ABA Model Rule 4.1, Truthfulness in Statement to Others, states:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Also helpful in attacking sham pleadings is Fed. R. Civ. P. Rule 11(b), Representations to the Court:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
. . . [and]
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identi fied, are reasonably based on belief or a lack of information.
Note that the duties of an attorney under Fed. R. Civ. P. 11 will be “judged by an objective standard. The absence of bad faith or malice is not determinative under the objective standard, opening up a broader range of possible scenarios deserving of sanctions.”
B. Remedies Available to Address Sham Pleadings
When pleadings are initially received that appear to have false content, counsel may want to start with a Fed. R. Civ. P. 12(e) motion to make it more definite and certain:
Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.
When amended pleadings fail after this inquiry to assert colorable claims or substantive information altogether, the next tier of defense is a motion for sanctions for unethical conduct related to counsel’s certification of pleadings. In the case of an untimely filed pleading with representations that are patently false, a motion seeking sanctions is appropriate. Fed. R. Civ. P. 11(c)(2), Sanctions, provides:
Motions for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
But Fed. R. Civ. P. 11(c)(1) clarifies:
In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
When asking a court for sanctions, make sure to present evidence construing the pleadings in the larger context of the procedural history of the claims to date, asserting the standard set by Fed. R. Civ. P. 8(e), Construing Pleadings: “Pleadings must be construed so as to do justice.” Note, however, that in granting relief, courts must comply with Fed. R. Civ. P. 11(c)(4), Nature of a Sanction:
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.”
Many states have adopted the Fed. R. Civ. P. 11, including its sanctions. Be aware, however, that there are states that have articulated variations on Fed. R. Civ. P. 11 and its sanctions. Their omissions and modifications may be such that citing to case law from those jurisdictions will not be binding precedent but be merely instructive, and you will have to argue by analogy for its relevance.
In addition, or in the alternative, to a Fed. R. Civ. P. 11 motion, a party also may move for sanctions under Fed. R. Civ. P. 26(g)(3), Sanctions for Improper Certification, which provides:
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.
If circumstances are egregious enough, the court may also entertain a motion to entirely strike the fraudulent pleading altogether under Fed. R. Civ. P. 12(f), Motion to Strike:
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
Additionally, a number of states and federal jurisdictions cite the U.S. Code to permit award of costs and attorney fees upon the granting of a motion for sanctions under 28 U.S.C. § 1927, Counsel’s Liability for Excessive Costs:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
Finally, if the court strikes pleadings of a party having a burden of proof that could only be gleaned from the fraudulent pleadings so stricken, it may be sufficient to support a subsequent dispositive motion dismissing the violating party’s claims altogether.
Conclusion
The ABA Model Rules of Ethics and the Federal Rules of Civil Procedure create a powerful framework for halting abuse of discovery phase processes, but only if counsel is vigilant in watching for misconduct and gathers thorough documentation that supports the court’s exercise of a broad array of remedies available to thwart this wrongful conduct. It is important to give opposing counsel the benefit of the doubt by directly contacting them to not only make diligent inquiries, but also to build an excellent record of your interactions should informal discussions prove inadequate to resolve their discovery abuses. Reiterating in emails previously agreed schedule commitments and documenting abusive activities will be critical in eliciting a court’s aid. Remember to harness the power of the pretrial scheduling order to create clear deadlines for exchange of meaningful discovery. If opposing counsel nevertheless crosses procedural or ethical lines, do not hesitate to compel production and ask the court for sanctions if its directives are not followed.