Leveling the Playing Field –


Curbing Discovery Abuses by David F. Albright, Jr.


Mr. Albright is a 1981 graduate of the Georgetown University Law Center, and a partner in the firm of Horn & Bennett, P.A. His practice is concentrated in the areas of medical malpractice, products liability and serious personal injury. He is also a member of the Board of Governors of the Maryland Trial Lawyers Association and Chair of the Fundraising Committee. He is a member of MTLA’s President’s Club as a Founder.


I. INTRODUCTION Federal Court is perceived to be a De- fendant-friendly litigation forum. Indeed, with the aggressive use of Daubert mo- tions by defense counsel and the Judiciary’s embrace of such motions, Plaintiff ’s counsel often believe that the playing field is tilted against them. How- ever, one advantage which Plaintiffs have in Federal Court is that the Bench tends to be much more fastidious regarding dis- covery matters than the State Court Judiciary. This tradition of the Federal Court is well-illustrated in several recent decisions which address␣ discovery abuse. Two recent nisi prius decisions by


United States Magistrate Judges Paul W. Grimm and Susan K. Gauvey illustrate well this tradition to assist counsel in two areas which make litigation difficult for Plaintiffs: abusive deposition questioning, and stonewalling in discovery. Both of these decisions are available through MTLA under the case names of Freeman v. Schointuck1


and Poole v. Textron.2


II. OVER-AGGRESSIVE DEPOSITION QUESTIONING Magistrate Judge Grimm in the case


of Freeman v. Schointuck addressed the problem of abusive deposition question- ing. The issue of improper deposition questioning arose out of a deposition con- ducted by Defendant’s counsel of one of Plaintiff ’s experts. When the expert did not answer questions to the satisfaction of Defendant’s counsel, Defendant’s coun- sel filed a discovery motion. The Court agreed that the expert’s answers in depo- sition “often were evasive, incomplete and non-responsive,” and ordered that


1


Chrissan Freeman v. Richard L. Schointuck, et al., Civil Action No.: WMN-98-958, in- volved a serious personal injury claim in which the Plaintiff alleged that as a student at a local college she inhaled damaging va- pors due to the negligence of the design of the HVAC in a classroom.


2


Ryan W. Poole, etc. v. Textron, Inc., et al., Civil No.: WMN-98-280


6


Defendant’s counsel be permitted to redepose Plaintiff’s expert. The Court also awarded Defendant’s counsel attorney’s fees and costs. Plaintiff ’s counsel was spe- cifically warned by the Court that if the expert failed to give proper answers, the Court would consider additional sanc- tions, including an order that she not be permitted to testify at trial. Against this back-drop, Defendant’s counsel re-de- posed Plaintiff ’s expert, and then filed another motion to preclude Plaintiff ’s expert from testifying at trial. Defendant’s counsel contended in his motion that the Plaintiff ’s expert failed to answer his ques- tions. However, in a dramatic turnabout, not only was Defendant’s motion denied, but Defendant’s counsel was sanctioned for “his unprofessional conduct during the resumption” of the deposition of the Plaintiff ’s expert. What the Court found in the resump- tion of the deposition of the Plaintiff ’s expert was that repeatedly the Defendant’s counsel made insulting comments, hos- tile comments, sarcastic comments and threatening comments. The Court found that the behavior of Defendant’s counsel violated Local Rule 606 and Discovery Guideline 1.C of the Court. The Court attached to its opinion ex- amples of the type of comments that it believed violated an advocate’s duty to conduct a deposition in a professional and courteous manner. The following were the examples of the insulting comments made by Defendant’s counsel to Plaintiff ’s counsel and his expert: Examples of Insulting Comments by


Defense Counsel during 1/18/00 Depo- sition:


Page Comment 670 [to Plaintiff’s counsel] “You’re about as bad as she is.”


672 [to Plaintiff’s counsel, after he objected to one of defense counsel’s questions] “You don’t like the compound part of it, is that the problem, Mr. Erwin, too difficult for you?”


675 [to Plaintiff’s counsel] “Yes, you Trial Reporter


are nervous, Mr. Erwin, because this case is rapidly diminishing.”


682 [to witness] “So say it. Don’t play your typical games.”


695 [to Plaintiff ’s counsel] “And you’ve been right now how often in this litigation....How often have you been right in this litiga- tion in your viewpoints?”


698 [witness] “I’ve never been sub- jected to such hostility from any defense lawyer.”[defense counsel] “I’ve never been treated like this by any witness, touché. Can you finish your answer?”


724 [to witness] “What don’t you understand about the question, Dr. Ziem? Is this the feigned ig- norance part that has been the subject of a previous motion?”


737 [to witness] “Maybe you have MCS [multiple chemical sensitiv- ity,


767 [to witness] “You are a piece of work, Dr. Ziem.”


775 [witness]: “I’ve never had such difficulty with a defense lawyer, Mr.—”[defense counsel]: “Oh, Dr. Ziem, the feeling is mutual.”


777 [witness]: “I’m trying to be scientific.”Defense counsel: “And evasive, which you get an A plus in.”


807 [referring to witness and Plaintiff ’s counsel] “Both you two, it’s like Jekyll and Hyde in here, it’s unbelievable. It’s like a tag team that I’ve never seen be- fore.


It’s called hide the ball, lay


the record—muddle up the is- sues—”


843 [to witness] “Answer the ques- tion. You know, I don’t need...a sideshow.”


882 [Witness referring to Plaintiff’s alleged cognitive difficulties] “Yes, and she’s having difficulty remembering her lines [in theater


(Continued on page 8) Winter 2001 a condition which Plaintiff


asserts causes cognitive impair- ment] then....”


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