Our blog for this week discusses discovery abuse. “Discovery” is the stage in a lawsuit where parties to a case have a right to obtain evidence from opposing parties and third parties which supports their claims and defenses. “Discovery abuse” occurs when the discovery process is wrongfully undermined. For example, in a case involving an injury sustained during a car accident, the plaintiff (the party bringing the lawsuit) may seek to obtain dash-cam footage from the defendant’s car which shows that the defendant ran a red light before crashing into and injuring the plaintiff. Setting aside any fifth amendment self-incrimination issues, if the lawyer for the defendant’s insurance company in that case refused to allow the plaintiff’s attorney to access the video footage, the defendant’s attorney might be said to have committed discovery abuse.

In our earlier blog article, “How To Compel Discovery In North Dakota,” we discussed what can be done to address and correct discovery abuses when they happen in litigation. You can read about that here. In this blog post, we discuss the significance of discovery abuse and go over some ways in which it can manifest itself.

The Significance Of Discovery Abuse

The topic of discovery abuse is significant both as it may relate to a particular lawsuit in question and also with respect to the implications it can have on justice at large. Our system of justice in the United States is described as an “adversarial legal system.” Adversarial legal systems are features of common law countries and are characterized by self-driven advocacy before a neutral and largely passive judge and jury. Unlike in civil law systems, where the judge may interview witnesses and serve as an “inquisitor,” in adversarial legal systems, the judge plays a minimal role in obtaining the evidence and facts of the case. This is how it usually works, despite what we may have seen on TV.

Because the judge plays a neutral role in the common law system, the burden of finding the truth largely rests with the parties’ attorneys in the case. Pursuant to North Dakota Rule of Civil Procedure 26(b)(1)(A), parties may obtain discovery from an adverse party regarding any nonprivileged (not otherwise protected by law) matter that is relevant to any party’s claim or defense. At the same time, attorneys must be zealous advocates for their clients, fully devoted to advancing their clients’ interests. See N.D.R. Prof. Conduct 1.3 cmt. 1 (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”).

So what happens when the truth is damaging to one of the parties; what happens, for example, when the dash-cam video shows that the light was red? This is where discovery abuse comes into play. Make no mistake: litigation is a fight, but it is not a game. As noted by the Court in Haeger v. Goodyear Tire & Rubber Co., 906 F. Supp. 2d 938, 941 (D. Ariz. 2012), “[l]itigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Discovery abuse might be likened to a situation where one party refuses to fight fairly. And where discovery is abused, justice is thwarted.

Some Typical Forms Of Discovery Abuse And Rule Violations

Discovery abuse oftentimes arises during written discovery. Written discovery refers to discovery that is achieved by way of written prompts served on an adverse party to a lawsuit. The most common forms of written discovery are interrogatories, requests for production, and requests for admission.

Interrogatories are written questions sent by one party to an adverse party and are governed by North Dakota Rule of Civil Procedure 33. Requests for production are written requests by a party to an adverse party asking that documents or electronically stored information be produced. They are governed by North Dakota Rule of Civil Procedure 34. Requests for admission are governed by North Dakota Rule of Civil Procedure 36 and are requests by one party to an adverse party that a factual statement be admitted as true.

In written discovery, discovery abuse can oftentimes manifest itself through boilerplate objections, as well as evasive, incomplete responses to interrogatories and requests for production.

Boilerplate Objections

Vague, repeated objections to discovery requests on the basis of “form and foundation” or on grounds that a request is “overly broad, vague, and unduly burdensome” are referred to as “boilerplate objections” and are improper under the North Dakota Rules of Civil Procedure. Grounds for objecting to interrogatories and requests for production must be stated with specificity and should not merely regurgitate stock phrases from the North Dakota Rules of Civil Procedure. For example, Rule 33(b)(4) of the North Dakota Rules of Civil Procedure requires that “the grounds for objecting to an interrogatory must be stated with specificity,” and Rule 34(b)(2)(B) provides that “for each item or category, the response must . . . state with specificity the grounds for objecting to the request.”

Courts have repeatedly held that boilerplate objections are improper and have stricken them accordingly. Just a few examples of Courts treating boilerplate objections with disdain include: Kooima v. Zacklift Intern., Inc., 209 F.R.D. 444, 446, 53 Fed. R. Serv. 3d 1315 (D.S.D. 2002) (noting that “boilerplate objections are unacceptable”); Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528 (S.D.W.Va.2007) (commenting that “there is abundant caselaw to the effect that boilerplate objections to Rule 34 document requests are inappropriate.”); and Perez Librado v. M.S. Carriers, Inc., 2003 WL 21075918 (N.D. Tex. 2003) (concluding that “a mere statement by a party that an interrogatory is overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection. Broad-based, non-specific objections are almost impossible to assess on their merits, and fall woefully short of the burden that must be borne by a party making an objection to an interrogatory or document request.”).

In one case, St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508 (N.D. Iowa 2000), the Court crafted a special sanction for Counsel due to the boilerplate objections asserted in discovery, requiring that the lawyer write an article explaining why the objections were improper and submit it to the New York and Iowa Bar Journals. Other Courts have not been so kind, awarding severe monetary sanctions. Haeger, 906 F. Supp. 2d at 982. North Dakota Courts have a significant amount of discretion when choosing to award discovery sanctions. Benedict v. St. Luke’s Hosps., 365 N.W.2d 499, 504 (N.D. 1985).

Continuing with our previous example, let’s assume that the civil defendant is in possession of the dash-cam video footage of the accident and the plaintiff propounds the following interrogatory, receiving the following objection in response:

Interrogatory Number 1:

Please state whether you had any dash-cam or other video recording device in your vehicle at the time of the crash which captured footage of the accident.

Objection:

Objection to form and foundation. This request is overly broad, vague, unduly burdensome, and seeks information not reasonably calculated to lead to the discovery of admissible evidence. This request also seeks information protected by attorney-client privilege, and attorney work product.

Here, we can see that the plaintiff is seeking to obtain discovery regarding factual matter that is relevant to his negligence claim. To succeed in his negligence claim, the plaintiff must prove by a preponderance of the evidence that the defendant caused him harm by breaching a legal duty the defendant owed the plaintiff. If the defendant has video footage of the accident which helps the plaintiff show that the defendant breached his duty of care, the defendant must state as much in response to plaintiff’s request. As a result, in the first instance, the plaintiff’s discovery request is proper under North Rule Dakota Rule of Civil Procedure 26(b)(1)(A).

Second, we can see that the defendant has offered the plaintiff a boilerplate, obstructionist objection in response to the plaintiff’s legitimate request—on the basis of form, foundation, breadth, relevance, privilege, and work product. Contrary to Rule 33(b)(4), the defendant’s objection has not been stated with specificity. How is the discovery request overly broad? How would it be unduly burdensome for the defendant to state whether it possesses this video footage? The defendant has not provided any such information. Indeed, the plaintiff’s attorney is asking for nothing more than a simple statement.

With respect to the objection based on privilege and attorney work product, the defendant’s objection again falls short of what is required by the North Dakota Rules of Civil Procedure. Under Rule 26(b)(5)(A), as in this example, when a defendant withholds information that is otherwise discoverable by claiming that it is privileged or protected as attorney work product, the defendant must provide a description of the nature of the information in a manner that will allow the plaintiff to assess the claim. The North Dakota Supreme Court, in St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65, ¶ 17, reiterated that “[t]he party claiming the privilege and desiring to exclude the evidence has the burden to prove the communications fall within the terms of the statute or rule granting the privilege.” Again, the defendant has provided nothing. This exemplifies a form of discovery abuse, even if it may be relatively common.

Evasive, Incomplete Responses

As with boilerplate objections, evasive, incomplete responses to discovery requests are improper under the North Dakota Rules of Civil Procedure, and can be forms of discovery abuse. In Voracheck v. Citizens State Bank of Lankin, 421 N.W.2d 45, 51 (N.D. 1988), the North Dakota Supreme Court noted that, with respect to discovery, even substantial compliance is not enough. Instead, complete and accurate compliance is required:

A party is not at liberty to “pick and choose” what information will be provided and what information will be withheld. Selective, substantial compliance is not enough; complete, accurate, and timely compliance is required by the rules. If a party were allowed to withhold certain information because it had provided some of the requested information, the discovery process would be rendered useless.

Rule 37(a)(4) of the North Dakota Rules of Civil Procedure provide that “an evasive or incomplete answer or response must be treated as a failure to answer or respond.” Similarly, under Rule 26(e)(1), where a party has become aware that a discovery response is incomplete or incorrect, that party must supplement or correct it.

Continuing with our previous example, let’s assume that the civil defendant decides, instead of fully answering the interrogatory, to merely state either that “this answer may be supplemented” or that “discovery is continuing.” These are, once again, relatively common discovery responses in litigation, but nonetheless can serve as forms of discovery abuse. North Dakota Rule of Civil Procedure 33(b)(3) requires that each interrogatory, to the extent that it is not objected to, be answered fully and in writing. Answering only that “discovery is continuing” or “this answer may be supplemented” are failures to respond to discovery. See also Carolina Cas. Ins. Co. v. Oahu Air Conditioning Serv., Inc., No. 2:13-CV-01378-WBS-AC, 2014 WL 4661979, at *4 (E.D. Cal. Sept. 17, 2014) (finding the response “discovery is continuing” insufficient and granting motion to compel); Azer v. Courthouse Racquetball Corp., 852 P.2d 75, 84 (Haw. Ct. App. 1993) (concluding that the response “discovery is continuing” was a failure to answer under Rule 37(a)(3)); K.R.S. v. Bedford Cmty. Sch. Dist., No. 4:13-CV-00147-HCA, 2014 WL 11513167, at *4 (S.D. Iowa Dec. 15, 2014) (“this response may be supplemented,” is improper, vague, boilerplate language that must be supplemented).

Conclusion

Discovery abuse is serious and thwarts the truth-finding process required for our common law legal system to produce just outcomes. The duty to make diligent efforts to respond completely to the substance of discovery does not stop with the North Dakota Rules of Civil Procedure. Rule 3.4 of the North Dakota Rules of Professional Conduct states, in subsection a, that “[a] lawyer shall not . . . unlawfully obstruct another party’s access to evidence,” and in subsection d provides that “[a] lawyer shall not . . . fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party.” As officers of the Court, lawyers have a duty to help ensure the integrity of the legal system, and that duty becomes especially evident in discovery.

In this blog article, we’ve discussed why discovery abuse is important, and gone over some examples of how it can manifest itself. The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. Each case is different, and this article is meant only to provide a brief summary of the law. You should contact an attorney to obtain advice with respect to your particular case.

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