December 03, 2012 Articles

Keeping Discovery Bullies at Bay

Ten tips for remaining calm, cool, and collected while dealing with aggressive opponents during these often-heated disputes.

By Joan K. Archer and Jennifer E. Hoekel

Bullying in discovery comes in a variety of forms. Sometimes it's abusive requests for production, at other times it's the behavior of opposing counsel in a deposition. No matter the format or opponent, one can always turn an intolerable situation into one in which you have the strategic advantage by following 10 simple rules for dealing with discovery bullies.

1. Abide by the Golden Rule The most important rule for dealing with bullies is "Do unto others as you would have others do unto you." All other rules flow naturally from this one tenet of behavior. If you simply ask yourself how you would like to be treated, most choices become obvious (once you follow rule number two and calm down). Even though your opponent may be acting like a jerk, should you give him or her the extension to respond to discovery? Ask yourself what you would want in that situation. Or, opposing counsel may have done a poor job answering interrogatories. Should you follow suit—or rise above and do what you believe is professionally necessary? A motion to compel is filed against your client without that one last call from opposing counsel that could have resolved the issue. Would this excuse you from being obligated to make that last attempt to resolve your own discovery dispute? One can think of many other similar scenarios in which abiding by the Golden Rule makes the most sense. You not only will ultimately create a better impression when in front of your judge, but also will provide the most professional representation possible.

Premium Content For:
  • Litigation Section
Join - Now