Concept

Discovery Conduct

Fairness to opposing party and counsel

Discovery Conduct

Rule 3.4(d) polices both ends of the pretrial exchange of requests and responses. A lawyer shall not, “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.”¹ Discovery is the formal process before trial in which each side obtains documents, written answers, and testimony from the other. The opening phrase, “in pretrial procedure,” fixes the rule’s reach. What a lawyer may say to a jury falls under the neighboring clause of Rule 3.4(e), which begins “in trial” and is taken up under Conduct at Trial below.²

Rule 3.4(a), covered earlier under Access to Evidence, already bars a lawyer from unlawfully obstructing another party’s access to evidence and from unlawfully altering, destroying, or concealing material with potential evidentiary value.³ Rule 3.4(d) reaches the discovery process itself, and its two clauses police opposite ends of it. The first governs what a lawyer asks of the other side, so that discovery does not become a weapon. The second governs how a lawyer answers, so that discovery does not become a shield. Both clauses matter because discovery runs largely out of the judge’s sight. Requests pass from one law office to another, responses are prepared in private, and the court sees the exchange only when one side brings a dispute to it, so the lawyer is often the only person positioned to notice a problem. Court rules run in parallel with both clauses, and the subsections below note where.

Frivolous Discovery Requests

The first clause of Rule 3.4(d) governs what a lawyer sends: a lawyer shall not, “in pretrial procedure, make a frivolous discovery request.”⁴ A discovery request is a formal demand served on another party, such as a request for production of documents or a set of written questions. The clause exists because the two sides bear very different costs. The requesting lawyer decides what to ask. The recipient must search, collect, review, and produce. A request whose only function is to burden the other side therefore costs its author almost nothing and its recipient a great deal, and nothing on its face reveals the author’s motive.

The ethical line sits further out than a first reading suggests. A lawyer ethically may propound a request when it is well-founded, meaning at least arguably relevant and not subject to a discovery limitation.⁵ Because discovery is generally broad, a request crosses an ethical line, as opposed to a prudential one, in only two situations. One is a request that plainly seeks irrelevant, privileged, or otherwise protected information. The other is a volume of requests so large and disproportionate to the nature of the case that the volume itself shows they were designed to harass and oppress.⁶ Short of those two, overreaching carries a practical price. A lawyer who makes unnecessarily broad requests may lose credibility with the judge and see the scope of discovery restricted, and the lawyer ordinarily may rely on the responding party to control scope by objecting or seeking a protective order.⁷ That division of labor fits the system. The responding party knows what a request will cost and can say so, and a rule that disciplined every aggressive request would chill the asking on which each side’s fact-gathering depends.

Federal Rule of Civil Procedure 26(g) runs alongside the disciplinary clause. It charges the trial judge and the lawyers for the adverse parties with approaching discovery properly. Discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, for a proper purpose (not to harass, unnecessarily delay, or impose needless expense), and in proportion to what is at issue in the litigation. A judge who finds it was not is expected to impose sanctions that punish and deter.⁸

Mancia v. Mayflower Textile Services Co. catalogs the tactics that turn discovery into a weapon. A lawyer who seeks excessive discovery given what is at stake, who pursues discovery to make the adversary’s cost so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation for tactical advantage hinders the adjudication process. Such a lawyer makes the task of the “deciding tribunal not easier, but more difficult,” and breaches the loyalty owed to the “procedures and institutions” the adversary system is intended to serve.⁹ As the court concluded, rules of procedure, ethics, and even statutes make clear that the adversary system has limits during discovery.¹⁰ Delay stands on that list beside cost, and Rule 26(g) likewise names unnecessary delay among the improper purposes, so a lawyer who uses discovery to buy time stands on the same footing as one who uses it to run up costs.¹¹ The same passage in Mancia also lists boilerplate objections and evasive responses. Those belong to the responding lawyer and are taken up in the next subsection.

Discovery limits bind informal methods as well. Rule 3.4(c), which requires a lawyer to obey court rules, keeps a lawyer from circumventing the limits that the procedural rules place on discovery.¹² The federal rules set detailed protocols for discovering an opposing party’s expert witnesses and bar discovery of non-testifying experts except under exceptional circumstances. Professors Hazard and Hodes and attorney Peter Jarvis therefore conclude that informal, ex parte “debriefing” of an opposing party’s expert “must be considered to be prohibited, at least by clear implication.”¹³ A lawyer who may not get something through formal discovery may not get it informally either.

Hypothetical Illustration

A supplier sues a retailer for $30,000 on an unpaid invoice. The retailer’s lawyer serves two hundred overlapping requests for production reaching ten years of records about the supplier’s unrelated accounts, and tells a colleague that the point is to push the supplier’s legal bills high enough that it will accept a discount. Each request might be defended alone as arguably relevant. But the volume is far out of proportion to the dispute and the stated aim is to impose cost, so the lawyer has made frivolous discovery requests.

In a different case, a buyer sues a manufacturer for $2 million over a failed supply contract. The buyer’s lawyer serves ten requests for documents about the negotiation and performance of the contract. Several are drafted more broadly than necessary, and one would sweep in thousands of emails with no bearing on the dispute. The manufacturer objects, and the court narrows two of the requests. Every request was arguably relevant, none sought privileged material, and ten requests are modest beside the stakes, so the lawyer has made no frivolous request. The breadth cost the lawyer some credibility and nothing more.¹⁴

Two facts separate the cases: how well each demand fits the dispute, and what the lawyer wanted it to do. The retailer’s lawyer asked for material that might have been relevant, and the violation lay in the volume and in the aim of forcing a settlement through cost. The buyer’s lawyer asked for too much in places, and the system’s ordinary correctives, an objection and a narrowing order, were enough to fix it.

Two mistakes recur on exams. The first treats every overbroad request as frivolous. An arguably relevant request that asks for too much usually draws an objection and a narrowed order and nothing more, and the ethical line is crossed only by a request that plainly seeks irrelevant or protected information or by a volume disproportionate enough to show an aim to harass. The second treats the relevance of each request as a complete defense. Relevance tests one request at a time, and a campaign of requests can be oppressive even when every item in it is arguably relevant.

Diligent Compliance

The second clause of Rule 3.4(d) turns to the lawyer who answers. A lawyer may not, in pretrial procedure, “fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”¹⁶ Two phrases carry the clause. “Legally proper” limits the duty to requests the discovery rules allow, so a lawyer who meets an improper request with a plausible objection is practicing advocacy, not violating the rule. “Reasonably diligent” measures effort, so a lawyer who searched sensibly and still missed a document has not necessarily violated the clause, while a lawyer who stopped looking early or never looked has. The requesting party sees only the written response, which shows nothing about how the search was run, so the lawyer who prepares it is the one person who knows whether the effort was real.

Diligence begins with inquiry. A responding lawyer must make a reasonable effort to assure that the client has provided all the information and documents responsive to the request.¹⁷ The standard falls short of an exhaustive investigation and asks what is reasonable under the circumstances. Those circumstances include the number and complexity of the issues; the location, nature, number, and availability of potentially relevant witnesses or documents; the extent of the lawyer’s past working relationship with the client, particularly in related or similar litigation; and the time available.¹⁸ Each circumstance moves the answer. A lawyer who has handled similar litigation for the same client already knows where its records live, so less fresh digging may suffice, while a short deadline and files scattered across several offices call for a wider and faster sweep. Federal Rule 26(g)(1) states the expectation as a court rule. By signing a response to a document request, the responding party certifies that it made “reasonable inquiry,” and that inquiry reaches its employees and agents, including its lawyers. A party cannot shield a discoverable document by handing it to its lawyer.¹⁹

Reasonable inquiry cannot be handed off. “[I]t is ultimately the lawyer’s responsibility to preserve potentially relevant evidence, including that maintained in electronic format,” so a lawyer may not delegate to the client, in “wholesale fashion,” the tasks of identifying, gathering, reviewing, and disclosing documents.²⁰ Electronic storage shows why. Relevant email may sit in several systems the client never thinks to mention, and a lawyer who does not know what systems exist cannot ask about them. Rule 26(f) therefore requires a lawyer to understand and competently investigate the client’s electronic storage systems well enough to take part in the Rule 26 conference.²¹ Sending the review to a vendor does not move the duty. Lawyers cannot relieve themselves of their ethical obligations by outsourcing electronic discovery to a vendor without direct supervision, and they must monitor the process to make sure relevant non-privileged information is identified, preserved, reviewed, and produced.²² A vendor searches only where it is pointed. A lawyer who never checks the work may certify a response as complete when the search reached only part of the client’s data.

Objections and responses meet the same standard. Plausible and legitimate objections are part of the adversarial process and reflect appropriate zealous advocacy, but obstructionist objections violate ethical expectations because a frivolous resistance cannot be characterized as a “reasonably diligent effort” to comply.²³ Mancia lists the forms the second kind takes: boilerplate objections made without particularizing their basis, and responses that are evasive or incomplete.²⁴ An objection works only if someone can test it. One tied to a specific request and a stated ground lets the requesting party and the judge decide whether it holds, while the same string of overbroad, vague, and burdensome objections attached to every request looks identical whether or not any real basis exists, and it leaves the requesting party unable to tell what is being withheld. Evasion does the same damage inside the answer itself. A response drafted to be literally true while implying completeness delivers less than was asked and hides the gap.

In Branhaven, LLC v. BeefTek, Inc., 288 F.R.D. 386 (D. Md. 2013), the court held that plaintiff’s counsel’s failure to identify and produce the client’s email in a timely fashion and in an acceptable form and manner, while suggesting, if not misleading, the defendants that it had identified responsive documents, was sanctionable.²⁵ The holding joins two failures: a late and unacceptable production, and a suggestion of completeness that left the other side believing a search had been done. An exam stem about a response to a document request asks two questions. Did the lawyer look, and did the response tell the other side the truth about what was found and what was held back?

Hypothetical Illustration

A supplier’s lawyer answers a request for all documents about a terminated contract by objecting to every category as overbroad, vague, and burdensome, with no explanation for any of them. The lawyer asks only the supplier’s general counsel whether more documents exist, learns nothing, and certifies the response as complete, though the sales offices where the contract was negotiated were never contacted. The lawyer has made boilerplate objections and skipped the reasonable inquiry, so the diligence clause is violated.

A distributor’s lawyer in a different suit receives a similar request. The lawyer interviews the managers who handled the account, asks the IT director which systems hold email and where departed employees’ mailboxes are archived, and checks the review vendor’s search terms and sample results before approving production. The lawyer objects to one category because it would expose another customer’s confidential pricing, naming the category and the ground, and produces everything else responsive. An internal memo that would hurt the distributor in an unrelated warranty dispute falls within no request, and the lawyer does not produce it. Each step is diligent compliance, and the clause does not require volunteering the memo.²⁶

Two facts separate the lawyers: what each did to find the documents, and what each told the other side about the results. The first lawyer asked one person, objected to everything alike, and vouched for completeness. The second went to the sources, objected only where a ground existed, and left the unrequested memo alone, which marks where the clause stops.

The duty attaches to a legally proper request, so it creates no general obligation to volunteer evidence the other side has not asked for. The typical advocate ordinarily has no affirmative obligation to volunteer evidence that is potentially harmful to the client’s case.²⁷ Once a legally proper request reaches a damaging document, however, the harm gives no ground for withholding it, because the duty of fairness bars a lawyer from withholding “smoking gun” electronic information simply because it hurts the client’s position.²⁸ The request is therefore the hinge. The same document is protected by silence when no request covers it and must be produced when one does.

A prosecutor stands differently. Brady v. Maryland holds that due process requires the government to disclose exculpatory information, and the prosecutor’s disclosure duty reaches mitigating evidence as well. The source adds that whether prosecutors have fully built that duty into their practice is highly debated.²⁹ A lawyer for a private party in civil discovery has no comparable duty, so a student who carries the prosecutor’s duty into a problem about an ordinary advocate will wrongly conclude that harmful evidence must be volunteered.

A client’s independent misconduct does not automatically fall on the lawyer. In Waste Management of Washington, Inc. v. Kattler, a client disobeyed an order to produce a thumb drive and a tablet computer, and the Sixth Circuit reversed a contempt finding against the lawyer.³⁰ The lawyer was unaware of the misconduct, did not assist or participate in it, and moved to correct the deception as soon as the lawyer learned of it.³¹ The last fact tracks the candor rule. A lawyer who represents a client in an adjudicative proceeding and knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding must take reasonable remedial measures, including disclosure to the tribunal if necessary.³² A lawyer who learned of the problem and stayed silent would lack the facts that protected the lawyer there.

Courts also hold tools of their own against abusive conduct by counsel, including control over who may appear before them. In Paramount Communications Inc. v. QVC Network Inc., the Delaware court ordered an out-of-state lawyer to show cause why his behavior at a deposition, which the court described as “extraordinarily rude, uncivil, . . . vulgar, . . . unprofessional, . . . outrageous and unacceptable,” should not bar any future pro hac vice appearance in a Delaware proceeding.³³ Pro hac vice permission lets a lawyer appear only for the purposes of the case. The discussion of civility toward opposing counsel below returns to conduct of this kind.

Exam Analysis Steps

Because the clause measures effort and attaches only to proper requests, a fact pattern about a discovery response is best run in this order:

Ask whether the request is legally proper, since a plausible objection to an improper request is advocacy and the duty to comply attaches only to proper ones.
Ask what the lawyer did to find responsive material, including inquiry of the client and its agents, understanding of the client’s electronic systems, and supervision of any vendor.
Ask whether each objection was tied to a specific request and ground, and whether the response is complete and free of any suggestion that the search went further than it did.
Ask whether any request covers the damaging document at issue, because a harmful document must be produced when a proper request reaches it and need not be volunteered when none does.

Students most often err at the fourth step, reasoning that harm to the client either excuses withholding a requested document or requires volunteering an unrequested one. Neither follows from the rule. The harm to the client never decides the question, and the existence of a covering request always does.