The civil litigation death penalty

There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”

Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.

The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.

A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))

A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.


  • An important issue, and one where, unfortunately, numerous institutions have completely failed us, like the ACTL’s worthless civil discovery report (see my remarks here).

    The long and short of it is that the current system encourages frivolous defense objections and compels plaintiffs to discovery the bejesus out of cases, because that’s the only way to get any information at all.

    I’d be happy to see a trade-off of limiting plaintiff’s discovery alongside creating and enforcing a duty among defendants to reveal discoverable evidence. As it stands, a lot of firms make a lot of money doing little but filing bogus discovery objections and over-litigating every single issue, overwhelming courts and making discovery as much as crapshoot for plaintiffs as defendants. For every excessive spoliation order you see, there are dozens of relevant discovery requests denied by courts and thousands of blatantly destroyed or concealed documents.

  • South Florida and the Panhandle are plaintiff paradises – no civil defendant receives justice in either area without a tremendous fight .
    I would expect Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.)) to get reversed on appeal but still, what a waste of resources !

  • I don’t know, Ted, in Virginia my understanding is that they are extremely reluctant to go this far. So this problem is pretty alien to my existance, although i suppose it is possible.

  • I’ve done both plaintiffs and defense work. Certainly, because defendants often have the resources that they do and because they have more political motives with their clients to dot every i and cross every t for fear of getting blamed for failing to pursue something later, the “discovery to death” is more practiced by defendants than plaintiffs. But that is a general rule subject to many exceptions, to be sure.

  • What I saw from the civil defense side was some of the most tedious, time-consuming and ultimately irrelevant work performed by lawyers. Plaintiffs’ requests were not usually all that crazy, but we spent hours crafting byzantine objections based on the slightest of possibilities that something privileged would be gotten. It was ridiculous. For some defense attorneys, it was a major loss to have to give over anything but an incident report.

    Meanwhile, plaintiffs were great at throwing out accusations of a worldwide conspiracy emanating from some fairly simple products liability or slip-and-fall case, which always boggled my mind. Most of my clients were nowhere near as organized as that… most “missing documents” were never missing to begin with… Plaintiffs would infuriatingly accuse defendants of this, and naturally, we’d be hard pressed to prove a negative. But the judge would prick up his ears and we’d look bad. Spoliation was a nice little weapon… since it was actually an independent cause of action.

    In the end, it was always the weak cases that involved plaintiff brow-beating over discovery.