June 18, 2020 Articles

Discovery When Opposing a Pro Se Litigant

Themes and theories of discovery to keep in mind when the other side represents themselves.

By Lori Gayle Nuckolls

Access to technology and information is increasing. Consequently, more people are apprised of their legal rights and are representing themselves in legal matters. In 2019, the federal courts of appeals reported that 49 percent of new cases were brought by unrepresented parties (though this represented a decline of 4 percent). 

It is within the court’s discretion to determine the extent and nature of discovery at the trial level, as governed by existing law and rules, regardless of whether a party is represented or pro se. In the context of pro se litigants, the primary concern of the court is to honor the legal right of all persons to be heard while avoiding the burden and cost of frivolous litigation when this right is abused. 

Accommodating Pro Se Litigants

The ABA Model Code of Judicial Conduct Rule 2.2 dictates that judges uphold and apply the law and perform all judicial duties fairly and impartially. In Comment 4 to Rule 2.2, the ABA states that judges must “make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” See also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed’ . . . and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. . . .” (citation omitted)).

In deferring to a judge acting in accordance with Rule 2.2 in the context of discovery proceedings with a pro se party, an attorney must anticipate that the judge will take a more active role than in a typical court case. See Simmons v. Casella, No. CV 14-4491, slip op. at 4 (E.D.N.Y. Mar. 3, 2020) (denying request for discovery extension, noting that plaintiffs had “meaningfully participated in discovery by taking depositions, engaging in paper discovery and litigating discovery motions in a pro se capacity[,] . . . [and that the magistrate judge had] carefully supervised the discovery process, ensuring fairness throughout.”); Dogan v. Ali Baba’s Terrace Inc., No. 19-CV-5715, slip op. at 1 (S.D.N.Y. May 15, 2020) (magistrate judge guided pro se plaintiff’s discovery compliance with possible preclusion of seeking certain damages for noncompliance).

Rule 2.2 establishes the court’s minimum level of duty to maintain the procedural and substantive law of the adversarial system. And each given judge possesses unique, aspirational duties that are self-imposed with respect to the court system and specifically with respect to pro se litigants. See, e.g., Canada v. Perkins Coie LLP, No. 18-CV-11635, slip op. at 2, 9–21 (S.D.N.Y. Apr. 2, 2019) (in “Order and Notice of Initial Pretrial Conference in Pro Se Action,” court directed pro se plaintiff to strongly consider consulting both the court’s attached discovery guide and a newly created pro se clinic affiliated with the court); Ostrolenk Faber LLP v. Lagassey, No. 18-CV-1533, slip op. at 3, 8–10 (S.D.N.Y. June 10, 2019) (judge issued “Special Rules & Practices in Civil Pro Se Cases”).

Achieving a Proper Balance

In deferring to rules and ethical obligations, a balance must be achieved. Counsel and judges are guided by whether pro se litigants are acting in good faith in order to determine if the reasonable accommodations and leniency to be given their discovery requests merit the burden and cost imposed upon the court and counsel. Buckingham v. Lewis Gen. Tires, Inc., No. 19-1024, slip op. at 3 (2d Cir. May 5, 2020) (finding dismissal appropriate where pro se litigant’s noncompliance was found willful and in bad faith, as long as prior warning was given); LBCMT 2007-C3 Urbana Pike, LLC, v. Sheppard, 302 F.R.D. 385, 389 (D. Md. 2014) (finding that counsel acting in good faith seeking discovery from pro se defendant justified order to compel an award of costs and attorney fees); Ostrolenk Faber LLP, No. 18-CV-1533, at 4–5 (ruling that pro se litigant’s noncompliance must be willful and in bad faith).

In part, the relatively new legal standard governing adequacy of a complaint in light of a motion to dismiss, set forth in Bell Atlantic Corp. v. Twombly, has narrowed access to the courts and discovery for all parties. 550 U.S. 544 (2007). In undoing Conley v. Gibson, 355 U.S. 41 (1957), and its approval of a complaint for which “any set of facts” might be asserted in support, Twombly requires that a plaintiff state “factual allegations” demonstrating a “plausible” right to relief above a mere “speculative” level. Twombly, 550 U.S. at 555, 561–63.

Twombly has erected a barrier to entry for frivolous pro se claimants who contend that discovery will reveal facts not set forth in the complaint. Roth v. Wilder, 420 F. App’x 804, 805 (10th Cir. 2011) (dismissing pro se complaint per Twombly and acknowledging that discovery in hope of meeting legal standard for a plausible claim is improper). Represented defendants facing pro se plaintiffs are similarly benefited for they are not, in many circuits, governed by Twombly in their assertion of affirmative defenses. For the pro se party acting in good faith, Twombly is an obstacle because such parties usually lack the resources to marshal facts in support of their claim before discovery begins.

Recognizing the Role of the Court

All parties must defer to the court as arbiter. Counsel may always request that the court intervene. If a pro se litigant makes a discovery error, counsel must appeal to the court as with any other attorney. Simmons, No. CV 14-4491, at 3 (objecting to pro se plaintiffs’ request for extension). In the context of case management, the court might suggest that the pro se litigant seek the assistance of an affiliated pro se help center. Canada, No. 18-CV-11635, at 3. Or, more readily, the court may attach a procedural and or discovery pro se manual to a given court order and advise the pro se litigant to comply. Id. at 2–3; Ostrolenk Faber LLP, No. 18-CV-1533, at 8. This provides a fair opportunity for the pro se litigant to be heard while not burdening counsel and the courts.

Attorneys should rely upon intuition in deferring to ethical duties and the judge’s discretion. Act in a professional manner, especially when beyond the purview of the courtroom, such as during a deposition. If an impasse arises, the attorney may suggest that the opposing party seek representation. Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass'n 2010).

Conclusion

During the automated, rule-bound discovery process, neither we nor the courts will be served if we presume that pro se litigants are per se problems. We must look to the purpose of discovery—that is, to bring forth evidence to benefit all parties in the search for truth and justice. And we must not forget that rules of procedure and evidence have developed over time to safeguard the due process and fair conduct of our court system.

Lori Gayle Nuckolls is an attorney in Ohio and a public policy researcher for Philosophy, Law, and Politics.


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