Dirty Tricks That You Need To Look Out For

1. DIRTY TRICKS THAT YOU NEED TO LOOK OUT FOR

A. “Hiding the Ball:” Make Sure You Get Documents and Discovery That You Are Entitled To

Under the Missouri Supreme Court Rules, “parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party… provided the discovery is proportional to the needs of the case considering the totality of the circumstances…” Any document that is not privileged, is relevant to the subject matter involved, and is proportional is discoverable through depositions, written interrogatories, requests for production of documents, mental or physical examinations, and requests for admission. Not only is relevant information discoverable, but so is the “existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” The requested information does not have to be admissible to be discoverable “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Any party may then serve upon the other party a request to “produce and permit the party making the request … to inspect and copy” any designated documents or “test, or sample any tangible things” which are relevant, not privileged, and proportional to the needs of the case.

If after serving discovery, the Rambo litigator fails to produce documents you are entitled to, attempt to resolve the issue by conferring with opposing counsel first. If that fails, a court order is the next option. A motion to compel discovery is a request for the court to order the opposing side to disclose or produce discovery. The federal and state rules require that the parties attempt to resolve the issue before resorting to court action. The federal rules require “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action” with the motion to compel. Local court rules also require a certification with the motion to compel.

If a motion to compel is unsuccessful in getting the documents, a motion for sanctions may be the next step. A court may provide a remedy when a party fails to produce documents pursuant to a request for discovery or fails to respond to the request. “[T]he court may, upon motion and reasonable notice to other parties, take such action in regard to the failure as are just and among others the following:”

1. 1. 1. 1. Enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting the disobedient party from introducing designated matters in evidence;
         2. Enter an order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or render a judgment by default against the disobedient party;
         3. Enter an order treating as contempt of court the failure to obey; or
         4. Enter an order requiring the party failing to obey or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
         5. How to Deal With Frivolous Objections to Discovery

Boilerplate objections typically sound something like this: “overbroad,” “irrelevant,” or “privileged.” The objection should state how the request is deficient and how the party will be harmed if forced to answer it. When a party objects to an interrogatory, the party must provide a reason for withholding the information. Similar rules govern when objecting to a request for production.

To prevent frivolous objections to discovery, the information sought through interrogatories, or request for production, or other discovery methods must be relevant. The party requesting the discovery must “bear the burden of establishing relevance.” The fact that the information sought is not admissible at trial is not grounds for an objection so long as the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.”

If the opposing side makes frivolous objections and good faith effort to resolve the discovery and the issue fails, then file a motion to compel discovery responses. If the motion to compel fails, a motion for sanctions may be the next step. Failure to act, or failure to answer, or failure to produce may lead to discovery sanctions under Rule 61.01 such as an order striking pleadings or parts thereof; or an order to pay reasonable expenses, including attorney fees. If a party is objecting to approved interrogatories and requests for production under Rule 56.01(b)(6), “the court may assess against such objecting party, attorney, or attorney’s law firm, or all of them, the attorney’s fees reasonably incurred in having such objection overruled.” Failure to pay the fees within the allotted time may lead to an order striking pleadings, dismissal or a default judgment.

1. 1. 1. Improper Behavior of Counsel at Depositions: Coaching the Witness and Instructing a Witness Not to Answer a Question

When an attorney instructs a witness not to answer a question advanced during deposition, the procedure of Rule 61.01(g) should be implemented. Rule 61.01(g) provides in part:

If a witness fails or refuses to testify in response to questions propounded on deposition, the proponent of the question may move for an order compelling the answer. The proponent of the question may complete or adjourn the deposition examination before applying for an order.

If counsel instructs the witness not to answer, you should “seek clarification from opposing counsel as to the basis for the instruction not to answer.” Then ask whether the witness will follow counsel’s instruction not to answer. It is also important to consider whether counsel has a right to instruct the witness especially if the witness is not a party to the case. Finally, you should ascertain whether it is best to continue with the deposition or “adjourn the deposition and apply for an order to compel an answer.” In general, counsel may instruct a witness not to answer if the response is privileged.

A motion for a protective order asks the court to establish whether the witness must answer or whether privilege applies and the instruction not to answer was proper. If the motion is granted, the court will “require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees….” However, if the motion is denied, the court will require that “the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees…”

Objections made during a deposition are proper if made as to the manner of taking, form of questions or answers, oath, conduct of parties, or any other error that can be cured if promptly raised. Counsel may attempt to coach a witness during deposition using suggestive or “speaking” objections. Speaking objections are objections “which are argumentative or suggest an answer to the deponent.” For example, the deponent may be asked a broad question, and opposing counsel in an attempt to coach the witness may go “beyond the objection and states that ‘the witness could not understand your question; it’s too broad.'” Even if the deponent understood the question, after this objection, the deponent will most likely state, “I do not understand your question.”

1. 1. 1. Dealing With the “Rambo” Lawyer Who Will Not Communicate

The Missouri Rules of Professional Conduct require constant communication with a client in order to keep the client apprised of the matter, but there is no rule requiring opposing counsel to communicate with you. If you have actual knowledge that the opposing party is represented by counsel, you cannot communicate with the opposing party regarding the subject matter of representation. However, in limited circumstances such as authorization by law, a court order, or in the unlikely scenario that opposing counsel consents you may communicate with the opposing party. Furthermore, comments to Rule 4-4.2 provide that a court order may be sought if the lawyer is unsure whether a communication with the represented party is allowed, or in “exceptional circumstances to authorize a communication” that is otherwise prohibited.

If opposing counsel fails to respond to any requests for communication, set a case management conference with the court. Under Rule 62.01, you may make a motion for the parties to appear before the court for a case management conference. Local rules in family court proceedings typically require you to schedule a conference after a petition or motion is served on the opposing party. During this conference, the court may consider inter alia simplifying the issues, amendments to the pleadings, and “such other matters as may aid in the disposition of the action.” These conferences provide an early opportunity for the parties to meet together before the judge. If nothing else, they help keep the case organized and moving forward to either settlement or trial. At this point opposing counsel will have no choice but to communicate with you.

If you are interested in settlement, but the opposing side will not respond, a settlement conference is another opportunity to force the Rambo litigator to communicate. Many domestic cases will settle without having to go to trial. There can be many reasons for this: one party is not ready for trial, one party does not want to go through a trial, or the parties, apart from emotional discord, may actually agree or be willing to compromise. It is not a sign of weakness to discuss settlement. Each litigant may simply have their own timeline. They may need to cool down before they can honestly approach the topic of settlement. Or, they may need to be confronted with the less appealing prospects of depositions and trial. You will want to check local rules pertaining to settlement conferences for timing, the possibility of mandatory discovery and attendance policies. The judge may also issue a trial date before or at the conclusion of the settlement conference.

1. 1. 1. The Paper War and the Poison Pen

The Rambo lawyer will not only file frivolous motions to drive up the costs but may also send aggressive, insulting correspondence. To illustrate, Marvin Gerstein, an Illinois attorney, was suspended by the Illinois Supreme Court for thirty days for letters he sent to opposing attorneys. In one instance, because a claims adjuster questioned his conduct, Gerstein sent a letter back torn into “‘bite size pieces for your dining enjoyment.'” He further stated if the letter “‘…is not suitable for eating why don’t you take those bite size pieces and gently place them in that bodily orifice into which no sun shines and try not to get any paper cuts.'” Gerstein was previously censured in 1991 for a letter in which he called the opposing counsel a “‘despicable self-made piece of dog [feces]'” and stated, “‘I [urinate] on your existence.'” Other aggressive tactics may be rooted in sarcasm, insults or temper tantrums, personal threats and abusing the opposing attorney.

Using such aggressive tactics, whether it is in correspondence, motions, or in court benefits no one and can be costly to the aggressor and the client. The Preamble to the Rules of Professional Conduct states in part:

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.

These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.

The attorney using such tactics can damage his or her “own personal enrichment and professional standing.” Being discourteous to other members of the legal profession makes the job all the more difficult and “takes the fun from the practice of law.” Furthermore, “word gets around” and those “with a sterling reputation[] for civility stand a better chance of receiving civility in return.” In addition, when a lawyer’s writing is laden with overly-aggressive statements it could potentially cause irreparable damage to a client’s case. A judge may see the attacks on opposing counsel and “‘discount merits of the argument.'” As judges “determine the parties’ rights and obligations by applying fact to law,” they may discount the merits of an argument because “incivility projects weakness” whereas “civility projects strength.” Justice Ruth Bader Ginsburg stated nasty comments about the opposing side or ridiculing comments “are just distractions. You should aim to persuade the judge by the power of your reasoning and not by denigrating the opposing side. …If the other side is truly bad, the judges are smart enough to understand that; they don’t need the lawyer’s aid.”

Here are some suggestions on dealing with incivility in legal writing:

1. 1. 1. Ignore it;
      2. Reality-check it “to make sure it really is uncivil and you just aren’t suffering from a thin skin;”
      3. Vulcan it, making a “special effort to be cool, logical, professional, and Vulcan;”
      4. Question it;
      5. Flip it, use the incivility against your opposing counsel, for example attach the letters as exhibits to a motion filed in court;
      6. Move to strike it;
      7. Complain to the disciplinary authorities;
      8. If you are a judge, call counsel to end the incivility; and
      9. Do not engage.
   2. 1. Prescriptions for Controlling Bad Conduct: Videotaped Depositions and Providing for Special Masters/Judges at Depositions

Depositions may be recorded by a video tape or similar means provided that the notice of deposition must state it is to be videotaped and it states “the name, address and employer of the recording technician.” The video recording of the deposition is in addition to the usual recording and transcription method unless the parties agree to the contrary. Video recording the deposition may curb counsel’s transgressions because he or she will know that the video tape will be available for use later should counsel act inappropriately. Moreover, the misconduct will be easier to demonstrate in front of a judge.

Another solution to controlling Rambo’s misconduct may be the appointment of a master. Upon motion, the court “may appoint a master to preside at the taking of a deposition.” The master, “in addition to the authority conferred on officers to take depositions, shall have the authority to determine all objections to evidence and to exclude evidence that is not within the scope of discovery.” Like a video recording, the appointment of a master may curb counsel’s misconduct during depositions.

1. 1. 1. “Scorched Earth” Litigation Tactics: Winning at All Costs

The “scorched earth” litigation practice “entails the inundation of [an] adversary with tons of motions, interrogatories, document requests, deposition notices and other pre-trial disputes as a way to run up the costs of litigation, so that eventually the opposing party will want to settle the dispute for relatively little money or go broke trying the case.” For example, Dee Kotla sued the Department of Energy for wrongful termination, which Kotla alleged was over phone calls totaling $4.30. The Department of Energy spent $10 million fighting the wrongful termination suit. Kotla’s attorney stated that federal contractors, using scorched earth litigation tactics, tend to spend “vast amounts of money to fight lawsuits over relatively small things.”

Federal and state rules attempt to ameliorate the effects of scorched earth practices or prevent them altogether. For example, under the federal rules and Missouri rules, a party may only serve upon the party no more than 25 interrogatories including all discrete subparts. Interrogatories that go beyond this limit require permission from the court or must be stipulated by the parties. A court may also provide some relief through a protective order. Missouri Rule 56.01 provides:

Upon motion by a party or by the person from whom discovery is sought, including e-discovery, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

1. 1. 1. that the discovery not be had;
      2. that the discovery may be had only on specified terms and conditions, including a designation of the time and place;
      3. that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
      4. that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
      5. that discovery be conducted with no one present except persons designated by the court;
      6. that a deposition after being sealed be opened only by order of the court;
      7. that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
      8. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

Other rules that may limit such abuse include “limitations on the number of depositions to be taken without leave of court;” “limitations on the total number of hours a deponent can be forced to be questioned at a deposition without leave of court;” or “standard interrogatories and requests for production to be used in all smaller value cases.” Another alternative is to reach out to opposing counsel as well as the court and negotiate discovery parameters if such rules are not already in place.

1. 1. 1. “The Documents Don’t Exist:” The Needle in the Haystack

“A party who produces documents for inspection shall produce them as they are kept in the usual course of business so long as the form is reasonably usable by the requesting party, or shall organize and label them to correspond with the categories in the request.” The Rambo litigator most likely will not provide documents in an organized fashion, but may end up producing stacks of documents mixed with some relevant documents, the so-called document dump. However, this document dump may also be the result of an overly broad discovery request. “[T]he secret is to reduce what you demand to the essentials and rid yourself of the mindset that I will settle this case if I can drive the costs of discovery up for my opponent.” “[T]he more precise you are in your demands, the less risk of a data dump,” (or a document dump), thereby reducing the risk of receiving a needle in the haystack. Moreover, sanctions are available for the Rambo litigator who produces document dumps on the opposing party. Take for example, Norber v. Marcotte, in which the trial court struck the Defendant’s answers and entered a default judgment for discovery violations, which was affirmed on appeal.

In Norber v. Marcotte, 134 S.W.3d 651 (Mo. App. Ct. E. D. 2004), Douglas Norber filed suit after he was locked out of his transmission supply business and prevented from engaging in the business operation. Steven and Deborah Marcotte (collectively, “Marcotte”) locked Norber out of the business when he approached them about formalizing their partnership agreement. Norber voluntarily dismissed his first petition and re-filed seeking damages for inter alia breach of the partnership agreement and breach of fiduciary duty. Once served with discovery, Marcotte refused to answer several of the interrogatories. Marcotte’s objections were overruled and Norber’s motion to compel production was granted. The trial court also granted Norber’s motion for sanctions when Marcotte failed to “comply with the trial court’s order to tender proper discovery.” Marcotte was given an additional 15 days to comply with the order or his answer would be stricken. In response, Norber received 3,354 pages of discovery contained in two boxes. “After reviewing its contents, Norber brought a second motion for sanctions, arguing the documents were evasive, duplicative, incomplete and nonresponsive to his request for production.” After conducting an in camera inspection of the documents, the trial court struck Marcotte’s answer and later entered a default judgment against him. The Eastern District Court of Appeals affirmed this sanction against Marcotte on appeal finding that it was “clear from the trial court’s holding it concluded Norber suffered prejudice as a result of Marcotte’s inadequate discovery.” The documents were described as “‘woefully incomplete and unhelpful in aiding [Norber] to determine the relevant facts prior to trial or to allow [Norber] to develop his case or to eliminate the possibility of surprise at trial.'”

However, “a default judgment entered as a response to a discovery violation … is not a ‘true default judgment’ and is, instead, ‘treated as a judgment upon trial by the court.'”

1. 1. 1. Hiding Discovery That is Relevant to the Case

Lawyers have duties not only to their clients but also to opposing parties and counsel. The Missouri Rules of Professional Conduct Rule 4-3.4 provides in part, “[a] lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value” nor shall a lawyer “counsel or assist another person to do any such act.” The Rambo litigator may hide relevant discovery in a multitude of documents, as discussed above, or he or she simply fails to produce it. If the opposing counsel is hiding or failing to produce relevant documents, consider utilizing “other avenues of discovery to get the missing information, including the use of subpoenas to gather documents and obtain deposition testimony of third parties.” If counsel is aware that the relevant documents are in the hands of a third party, a subpoena duces tecum is perhaps the best option. The third party will have to appear for a deposition and produce any “books, papers, documents, or tangible things” if requested. However, if all the parties agree, the third party may be excused from attending the deposition and may produce the subpoenaed items barring any objections from the third party. Sanctions are another option if opposing counsel continues to conceal relevant documents.

To deter opposing counsel’s attempt at hiding or failing to produce relevant documents, “be certain to disclose to the other side all your pertinent theories and discoverable information by writing more specific pleadings.” Similar to the needle in a haystack situation, be sure to make “specific document and information requests,” and do not be tempted by using “form interrogatories and document requests.” Moreover, if the Rambo litigator claims a document does not exist, corroborate the representation by asking questions at a deposition as to whether the document exists.

1. 1. 1. Dealing With “Paid for Hire” Expert Witnesses

An expert witness is one “who is qualified as an expert by knowledge, skill, experience, training, or education” and “may testify in the form of an opinion or otherwise if:”

1. 1. 1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
      2. The testimony is based on sufficient facts or data;
      3. The testimony is the product of reliable principles and methods; and
      4. The expert has reliably applied the principles and methods to the facts of the case.

Discovering the opposing party’s expert witness can be done through interrogatories; or through a deposition, a party may discover “the facts and opinions to which the expert is expected to testify.”

The facts or data upon which an expert witness relies on to make her opinion “must be of a type reasonably relied upon by experts in the field in forming opinions or inferences.” One method of “damaging an expert witness is to establish that her opinions are based on assumptions instead of facts or data.” By doing so, the court will question whether the expert is truly an expert. Exploring an expert witness’s sources of potential bias is another common way to damage an expert witness. Potential biases include prior litigation involvement, how often the witness appears for a party, or the expert’s pecuniary interest in the case. While both sides may use expert witnesses, if one side is paying the expert witness an astronomical amount for her opinion, the authenticity of the expert’s opinion could be questionable.

1. 1. 1. How to Ensure That Your Opponent Designates the Proper 30(b)(6) Corporate Designee Witnesses

FRCP 30(b)(6) states in part:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.

This rule does not require that the organization must produce an individual for deposition that has the most knowledge on a particular subject. The rule only requires that someone, whether it be current employees, former employees, or someone on the outside, be selected to testify on behalf of the corporation. However, the selected individual’s testimony will bind the corporation. Further, unlike other employees deposed in a litigation, “[w]hen a corporation designates a Rule 30(b)(6) deponent, that witness is authorized to speak for the organization on the specified matters.”

Once the deposition begins and it is apparent that the produced witness is not “prepared to testify about the topics in the deposition notice,” there are two options:

1. 1. 1. Attempt to establish that the witness is not the “right” witness to testify on the requested issues; or
      2. Attempt to establish that the witness is the “right witness to testify, and then establish that the witness is not knowledgeable on the issues.

The first option should be utilized when the deposition is a necessary “fact-finding mission” and to compel the production of a different witness. The second option should be exploited when “the witness’s lack of information is advantageous to the other side.” The organization may be prohibited from introducing the testimony on the areas in which the witness does not have knowledge and cannot determine the information from corporate records.

The party giving notice may move for sanctions under Rule 37 through a motion to compel “if either the deponent corporation fails to appear or the deponent’s answers to matters set forth in the notice are unsatisfactory.” If the witness does not have sufficient knowledge to answer the questions on the matters specified in the notice, then the noticing party, in addition to filing a motion to compel, may “seek reimbursement of expenses incurred in taking the deposition, including attorney fees.”

1. 1. 1. Using Motions to Compel Effectively

Before seeking a motion to compel production or response, you are required to have met and conferred with the opposing party regarding the discovery dispute. “All parties shall make reasonable efforts to cooperate for the purpose of minimizing the burden or expense of discovery.” Better known as the “Golden Rule Letter,” it should be attached to a motion to compel to evidence to the court that a good-faith effort has been made. A motion to compel is also the appropriate action for either a lack of response or an incomplete response. If the party disregards a motion to compel or subsequent order to show cause, the party may be subject to contempt of court.

If the motion is granted, the court will conduct a hearing to determine whether attorney fees and other costs can be awarded to the movant. Additionally, the court can decide to strike pleadings, dismiss parts or the whole of the entire action, strike evidence or testimony as part of sanctions against the non-complying party. It is important to note that although a complete failure to respond is the clearest case of willfulness, incomplete or evasive answers have also been considered willful violations where the responding spouse simply intends to frustrate discovery. On the other hand, the court may not drastically penalize a party who makes a good-faith attempt to provide the requested information, even if the answers are incomplete. Utilizing a motion to compel is important as it puts the court on notice to the non-complying party’s refusal to comply with their discovery obligations. These motions allow the court to resolve discovery disputes by ordering compliance or imposing discovery sanctions on the other party that are favorable for your client. Additionally, these motions can create an impression that the opposing party is sloppy or unethical when they fail to meet their discovery obligations. Moreover, seeking consequences to another party’s failure to respond can save time and expenses on the case.

Using Effective Remedies to Combat “Rambo Litigation”

Kirk C. Stange, Esq. *

*Special thanks to Emily Donaldson & Javairia Khan for helping prepare these materials.

1. 1. 1. USING EFFECTIVE REMEDIES TO COMBAT “RAMBO” LITIGATION
   2. 1. 1. Sanctions

Motion for sanctions can be made when the opposing side fails to preserve, hides or destroys evidence during discovery. Sanctions can also be brought for filing frivolous pleadings or for violating court orders. Sanctions may be brought under MO R RCP Rule 55.03(d) which states the following:

If after notice and a reasonable opportunity to respond the court finds that Rule 55.03(c) has been violated, the court, subject to the conditions below, may pose an appropriate sanction, upon the lawyers, law firm, or parties that have committed or are responsible for the violation.

Sanctions may also be brought, under Mo. Sup. Ct. R. 58.01 and 61.01, for failure to provide discovery. However, a court will not immediately impose sanctions on a party who fails to answer or respond within the prescribed time period. A court will issue a motion to compel answers or motion to respond to written discovery first. A court will consider a motion for sanctions if the party then fails to answer or respond within the designated time period directed in a motion to compel, or if the party fails to comply with a court order to produce discovery. Missouri Supreme Court Rule 61.01 gives the court, “upon motion and reasonable notice,” the authority to:

1. 1. 1. 1. Enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting the disobedient party from introducing designated matters in evidence;
         2. Enter an order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or render a judgment by default against the disobedient party;
         3. Enter an order treating as contempt of court the failure to obey; or
         4. Enter an order requiring the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

In Davis v. Wieland, the trial court sanctioned the Mother’s attorneys in the amount of $75,000, which would be distributed to various charities, and also found that sanctions in the form of attorney’s fees for $25,000 were necessary to compensate the Father “for fees he incurred in responding to attorneys’ abusive pleadings.” In the first case, Francis v. Wieland, the Mother appealed the underlying modification judgment and the attorneys appealed the entry of a $75,000 sanctions judgment against them. The modification judgment was affirmed, however, the circuit court stated before trial that a hearing would be held on the Father’s sanctions motion and because the court failed to conduct the hearing, the sanctions judgment was reversed. In the original sanctions judgment, the trial court granted the motion because the attorneys contacted opposing expert witness through a 44-page letter asking that the expert amend her evaluation of the Mother; “litigation actions purportedly undertaken in ‘bad faith'” for example submitting a “260-page request for findings of fact and conclusions of law, containing 2,265 proposed findings;” and other “bad faith conduct” such as submitting 34 pages of interrogatories among other actions.

After conducting a hearing, the trial court entered a new judgment for sanctions finding that the request for findings of fact and conclusions of law was intentionally filed; the letter sent to the expert witness was “more akin to witness tampering;” and the attorneys intentionally violated a court order by failing to seek consent or leave of court to schedule a Saturday deposition. In determining the amount and nature of the sanctions, the court found that the exorbitant fees charged by the attorneys were not “normal or reasonable for a … custody modification case.” The attorneys received more than $400,000 in fees and such a fee “shock[ed] the conscience of the Court.” The sanctions judgment was affirmed on appeal.

Motion for sanctions can also be brought under Fed. R. Civ. P. 11(c) or under Fed. R. Civ. P. 37.

1. 1. 1. 1. Motions to Strike Pleadings

A motion to strike can often be employed before or during trial relative to pleadings that have been filed in the case and/or to help prohibit testimony (or remove testimony from the record). A party is required to make a motion to strike “where the objectionable nature of evidence becomes apparent after it has been received” and failure to do so will not preserve the issue on appeal. Furthermore, a specific objection to the testimony should be made so that a motion to strike preserves the issue on appeal.

– Jungmeyer v. City of Eldon, 472 S.W.3d 202 (Mo. Ct. App. W.D. 2015): Plaintiffs filed a six-count petition against the City of Eldon, Missouri (“City”) alleging, inter alia, Due Process violations and Equal Protection Clause violations relating to the City’s unlawfully high water and sewer rates. The City ultimately denied the allegations and filed a motion for summary judgment. Plaintiffs objected to the city’s motion for summary judgment by filing a motion to strike. The trial court ruled that the Plaintiffs had not responded to the City’s motion for summary judgment. According to the trial court, “the motion to strike did not constitute a response as contemplated by Rule 74.04.” On appeal, the Court of Appeals concluded the trial court erroneously concluded that the motion to strike was not a response to a motion for summary judgment.

– Favaloro v. BJC Healthcare, 2015 U.S. Dist. LEXIS 74901 (E.D. Mo. 2015): Favaloro filed a motion to strike (1) defendants’ motion for partial dismissal, (2) defendants’ memorandum in support of their motion for partial dismissal, and (3) defendants BJC Healthcare and Barnes-Jewish Hospital’s answer and affirmative defenses to plaintiff’s complaint. The district court denied the motion to strike. The Court asserted that under the Federal Rules of Civil Procedure, “[m]otions, briefs, memoranda, objections or affidavits may not be attacked by a motion to strike.” Therefore, a motion to strike could not be used to attack the defendants’ motion for partial dismissal nor the memorandum in support of their motion for partial dismissal. The district further denied the motion to strike the answer and affirmative defenses, finding that the answer did not include any “redundant, immaterial, impertinent, or scandalous matter” nor did it contain any insufficient defense.

– Goodsell v. Noland, 540 S.W.3d 394 (Mo. Ct. App. W.D. 2018): A motion to strike was utilized in this case to strike the Father’s pleadings after he failed to provide discovery on significant issues. Mother filed a “Petition for the Declaration of the Existence or Nonexistence of the Father Child Relationship under the Missouri Uniform Parentage Act and Order of Support.” The trial court entered its Judgment of Paternity and the Father appealed. Father alleged on appeal that striking his pleadings was a violation of Missouri law which prohibited striking pleadings in a custody case and further that by not allowing him to present evidence, he was denied due process of law. After receiving the Family Support Division’s, a third-party respondent, Request for Interrogatories and Production of Documents, Father also received a Golden Rule Letter. When Father failed to respond to the requests, the Family Support Division filed a Motion For Enforcement of Discovery asking the court to compel Father to respond to the requests “within fifteen days or risk his pleadings being stricken and being prohibited from offering evidence at trial.” The court entered the Order of Enforcement of Discovery and Sanctions; however, by the time of trial, Father still had not produced all ordered discovery. The trial court struck the Father’s pleadings, and the Court of Appeals found no abuse of discretion in doing so. According to the court, Father’s failure to provide discovery on important issues undermined the Mother’s ability to present her own case and Father made no showing as to how the court’s sanctions disadvantaged him in any way.

1. 1. 1. 1. Rules Governing Professional Conduct

The incivility that often occurs in “Rambo litigation” could rise to the level of unethical conduct warranting discipline from the bar. For example, the Model Rules of Professional Conduct (MPRC) Rule 4.4(a) states, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Additionally, MPRC Rule 8.4(d) states, “It is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice;” As a result, many lawyers taking part in “Rambo litigation” have been, and may be, subject to disciplinary action from the bar, including disbarment, suspension, or referral. Such discipline can be the result of incivility from an attorney to: another attorney, the Court(s), and/or others. This potential discipline that could come from such incivility further displays the importance of not handling “Rambo” litigation tactics with those same tactics, as it could result in discipline to both attorneys.

1. 1. 1. 1. Telling it to the Judge

There may come times when “Rambo litigation” tactics have become so uncivil that the judge or the Court may need to be notified and become involved. If it comes to such a point, it will be important to know the local procedural and preferential rules of the Court or Judge in which the matter is pending, alongside federal and state rules of civil procedure. Awareness and following of such local rules will not only allow an attorney to best tailor the presentation of their issues to reach the best outcome, but it will also place the attorney in a better position with the court when seeking to defeat many “Rambo litigation” tactics.

It is important to note motions filed with the Court should be filed judiciously; not all “Rambo” tactics need or should be resolved through court motions. In fact, repeated filing of such motions could result in constitution of “Rambo litigation” itself.

1. 1. 1. 1. Your Reputation and the Big Picture

When handling an opposing counsel that is using “Rambo” tactics, it is important to stay focused on the bigger picture and remain calm. Many litigators use “Rambo” tactics to distract, frustrate, and anger their opposing counsels, and while it can be tempting to respond to “Rambo” tactics using those same tactics, responding in that way may lead to the creation of a reputation of dishonesty and incivility. Additionally, responding using “Rambo” tactics is not in the best interest of the client as it will likely drive up the cost of litigation unnecessarily and could lead to unfavorable consequences to the attorney and their parties. In the end, it is in the best interest of the client and the attorney’s reputation “to remain civil and professional and let the Rambo Litigator’s own tactics expose his or her dishonesty and incivility.”

1. 1. 1. 1. Why Playing by the Rules is the Only Way to Practice

As discussed previously, it can be tempting to respond to “Rambo” tactics with those same tactics. However, there are many duties that lawyers must follow in which “Rambo” tactics are not in line with. Some of the duties of lawyers include:

• Zealously advancing the legitimate interest of their clients;
• Treating all other counsel, parties, and witnesses in a civil and courteous manner;
• Abstaining from disparaging personal remarks or acrimony toward other counsel, parties, or witnesses;
• Will not lightly seek court sanctions;
• Endeavour to confer early with other counsel to assess settlement possibilities and will not falsely hold out the possibility of settlement to obtain unfair advantage;
• Will not use any form of discovery or discovery scheduling as a means of harassment;
• Will not request an extension of time solely for the purpose of unjustified delay or to obtain unfair advantage;
• Will take depositions only when actually needed and will not take depositions for the purpose of harassment or other improper purpose;
• Will speak and write civilly and respectfully in all communications with the court;
• Will not engage in any conduct that brings disorder of disruption to the courtroom;
• Will act and speak civilly to court marshals, clerks, court reporters, secretaries, and law clerks with awareness that they, too, are an integral part of the judicial system.

A majority of the duties of a lawyer are focused on civility and honesty which is clearly in opposition to the use of often uncivil and dishonest “Rambo” tactics. Seeing that those duties could not be fulfilled using such tactics, it is clear that playing by the rules is the only true way to practice. Especially since playing by the rules is more likely to result in a better result for the client.

1. 1. Weeding Out the “Rambos”: Cleaning the Slate

Vastly, it has been suggested that the best way to put an end to “Rambo” style litigation is through the courts and state bars actively discouraging incivility. As previously discussed “Rambo” style litigation and its tactics often breach the duties and responsibilities had as lawyers as well as the Model Rules of Professional Conduct. Courts and state bars can and have issued penalties for such violations including sanctions, reprimands, official censure, embarrassing scolding on the record, and even disbarment. The issuance of these penalties are an important tool in cleaning the slate of “Rambo” style litigation as it promotes playing by the rules and discourages “Rambo” tactics out of fear of penalty. In order promote following the rules, the rules need to be enforced, and once they are enforced “Rambos” and their litigation tactics will begin to be weeded out. Otherwise, if the rules are not enforced, there will be nothing discouraging the use of “Rambo” litigation tactics and it will persist and may even grow.

It has also been suggested that to eliminate “Rambo” style litigation a culture of civility needs to be created. Psychologists have found that uncritical conformity, passive tolerance, and diffusion of personal responsibility are some of the factors getting in the way of attaining a culture of civility. Therefore, to promote and create such a culture in the practice of law, good behavior needs to be celebrated while bad behavior confronted directly. Everyone in the legal community affects the culture of the practice of law, so, it is up the legal community, including the courts and state bars, to create a culture of civility while also promoting, through enforcement, rules against incivility. Once that culture is created and maintained, “Rambo” litigation will diminish.

Mo. Sup. Ct. R. 56.01(b)(1).

Mo. Sup. Ct. R. 56.01(a).

Mo. Sup. Ct. R. 56.01(b)(1).

Id.

Mo. Sup. Ct. R. 58.01 (a)(1). Mo. Sup. Ct. R. 56.01(b)(1).

Fed. R. Civ. P. 37(a)(1). Mo. Sup. Ct. R. 56.01(g).

Fed. R. Civ. P. 37(a)(1).

See e.g. 22nd Cir. Ct. R. 33.5. 21st Cir. Ct. R. 33.5.

Mo. Sup. Ct. R. 61.01(d).

Fed. R. Civ. P. 33(b)(4). Mo. Sup. Ct. R. 57.01(c)(3).

Fed. R. Civ. P. 34(b)(2)(C). Mo. Sup. Ct. R. 58.01(c)(3).

Ronald L. Hicks, Jr., Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing Counsel, Employment and Labor Law, 153, 165, May 2013.

Mo. Sup. Ct. R. 56.01(b).

Id.

Mo. Sup. Ct. R. 61.01.

Mo. Sup. Ct. R. 61.01(h). Mo. Sup. Ct. R. 56.01(b)(6).

Mo. Sup. Ct. R. 61.01(h).

Matthew S. Jensen, et. al, Steppin’ Up and Steppin’ Out, How To Take And Defend Depositions in A Civil Case, MoBarCLE, 9, http://www.mobarcle.org/cle/2015/stepping-up-stepping-out/pages/day-two/How%20to%20Take%20and%20Defend%20Depositions%20in%20Civil%20Case%20Jensen.pdf.

Mo. Sup. Ct. R. 61.01(g).

Jensen, et. al, supra note 18.

Id.

Id.

Id.

Id.

Mo. Sup. Ct. R. 61.01(g).

Id.

Mo. Sup. Ct. R. 57.07(b).

Eric B. Miller, Lawyers Gone Wild: Are Depositions Still A “Civil” Procedure?, 42 Conn L. Rev., 1529, 1534 (2010).

How to Object When You’re Objecting (And Other Deposition Tips), St. Louis Bar Journal, https://www.armstrongteasdale.com/thought-leadership/how-to-object-when-youre-objecting-and-other-deposition-tips/.

Natassia Kwan and Richard Tabura, Fact Witness Deposition Tips for Young Lawyers, ABA, May 2, 2018, https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/fact-witness-deposition-tips-for-young-lawyers/.

Id.

R. 4-1.4.

R. 4-4.2.

Id.

Id. comment 6.

Mo. Sup. Ct. R. 62.01.

See e.g. 21st Cir. Ct. R. 68.6. 11th Cir. Ct. R. 68.12.

Id.

Michael Higgins, Insulting Letters May Get Lawyer Suspended, Chicago Tribune, Aug. 2002, https://www.chicagotribune.com/news/ct-xpm-2002-08-13-0208130021-story.html; See also Kate Clements, Urbana Attorney Loses Law License For at Least 6 Months, The News-Gazette, Sept. 2007, https://www.news-gazette.com/news/urbana-attorney-loses-law-license-for-at-least-months/article_bbd6f8b1-fc31-50d2-a00f-eb76bbd911cd.html (Gerstein’s license was suspended again in 2007 for sixty days for similar actions). See also ARDC, Marvin Ira Gerstein, https://www.iardc.org/ldetail.asp?id=148065424.

Higgins, supra note 39.

Id.

Id.

David L. Lee and Sarah R. Masarachia, “Kiss My Grits!” And Other Eloquent Retorts: Incivility in Legal Writing, 13 CBA Record 28, Apr. 1999, 28-29.

R. 4, Preamble [5].

R. 4, Preamble [9].

Douglas E. Abrams, Incivility in Legal Writing Can Be Costly to Client and to Attorney, 41 Montana Lawyer 14 (2015).

Id. quoting Judge Duane Benton of the U.S. Court of Appeals for the Eighth Circuit.

Id.

Id. (Chief Justice of the Maine Supreme Court disclosed this was the response when counsel attacks the opposing counsel).

Id.

Id. citing Interviews with United States Supreme Court Justices: Justice Ruth Bader Ginsburg, 13 Scribes J. Leg. Writing 133, 142 (2010) (quoting Justice Ginsburg)(italics in original).

Lee and Masarachia, supra note 43 at 30-31.

Mo. Sup. Ct. R. 57.03(c).

Id.

Mo. Sup. Ct. R. 57.06. Mo. Sup. Ct. R. 68.01(h).

Id.

Hicks, Jr., supra note 12 at 159.

Jason Devaney, Report: Dept. of Energy Spent $10 Million on Lawsuit Over $4.30, NEWSMAX, Jan. 2017, https://www.newsmax.com/Newsfront/department-of-energy-whistleblower-sexual-harassment-lawsuit/2017/01/30/id/771142/.

Id.

Id.

Hicks, Jr. supra note 12 at 159.

Fed. R. Civ. P. 33(a)(1). Mo. Sup. Ct. R. 57.01(a).

Id. Fed. R. Civ. P. 33(a)(1).

Mo. Sup. Ct. R. 56.01(c).

Will Sylianteng, Identifying and Preventing Scorched-Earth Litigation, The Legal Intelligencer, Sept. 2014, https://advance.lexis.com/search?crid=64102957-61c2-4247-ab5a-1acbd52d69d5&pdsearchterms=LNSDUID-ALM-LGLINT-1202668459002&pdbypasscitatordocs=False&pdmfid=1000516&pdisurlapi=true.

Id.

Mo. Sup. Ct. 58.01(c)(4).

John M. Facciola, Let’s Trash ‘Data Dump’ Litigation Ploys, ABA Journal, Oct. 5, 2018, http://www.abajournal.com/voice/article/lets_trash_data_dump_litigation_ploys.

Id.

See generally Andrew J. Felser, Document Production: Burying Responsive Documents Earns $10,000 Sanction, ABA, Jan. 31, 2017, https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2017/document-production-burying-responsive-documents-earns-10000-sanction/ (discussing a New York case in which plaintiffs received a $10,000 sanction for producing over 30,000 documents).

Norber v. Marcotte, 134 S.W.3d 651 (Mo. App. 2004).

Lewellen v. Universal Underwriters Ins. Co., 574 S.W.3d 251, 262 (Mo. App. 2019) (citing Norber, 134 S.W.3d 651).

R. 4-3.4.

Hicks, Jr., supra note 12 at 163.

Mo. Sup. Ct. R. 57.09.

Id.

Mo. Sup. Ct. R. 61.01.

Hicks, Jr., supra note 12 at 164.

Id.

Id.

Mo. Rev. Stat. § 490.065.2 (2017).

Mo. Sup. Ct. 56.01(b)(4).

Mo. Rev. Stat. § 490.065.1(3).

Jensen, et. al, supra note 18 at 20.

Id.

Id.

Koelling v. Mercy Hosps. East Cmtys., 558 S.W.3d 543 (Mo. App. 2018).

Weatherly v. Miskle, 655 S.W.2d 842 (Mo. App. 1983).

State v. Anderson, 79 S.W.3d 420 (Mo. 2002).

Fed. R. Civ. P. 30(b)(6).

Michelle Molinaro Burke, Making Sure The Correct 30(b)6) Witness Is Produced In Response To Your Notice, ABA, Jan. 31, 2018, https://www.americanbar.org/groups/litigation/committees/young-advocates/practice/2018/making-sure-the-correct-30b6-witness-is-produced-in-response-to-your-notice/.

Id.

Id.

Joyce C. Wang, Demetrius Lambrinos & Meredith L. Murphy, Speak For Yourself: The 30(b)(6) Deposition, ABA, Sept. 19, 2019, https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2018-19/summer/speak-yourself-30b6-deposition/.

Burke, supra note 91.

Id.

Id.

Id.

Wang, Lambrinos & Murphy, supra note 94.

Id.

Mo. Sup. Ct. R. 56.01(g).

LexisNexis Practice Guide: Mo. Pretrial Civil Litigation, Ch. 7 Discovery, Section 7.23.

16 Mo. Prac., Civil Rules Practice § 61.01(d):1 (2016 ed.); Mo. Sup. Ct. R. 61.01(d).

16 Mo. Prac., Civil Rules Practice § 61.01(d):1 (2016 ed.); Mo. Sup. Ct. R. 61.01(d).

See, e.g., Giesler v. Giesler, 731 S.W.2d 33, 35 (Mo. App. 1987) (answers that husband finally filed were “at best, incomplete and evasive”).

See Houtchins v. Houtchins, 727 S.W.2d 181, 184-85 (Mo. App. 1987) (error to strike wife’s answer where good-faith, albeit incomplete, responses were given to interrogatories).

See Whitworth v. Whitworth, 878 S.W.2d 479, 482 (Mo. App. 1994) (emphasizing that husband received repeated notice before his pleadings were struck).

The most severe sanction for discovery violations is to preclude the spouse from contesting your client’s position, generally by striking their pleading and entering a default judgment. See Whitworth v. Whitworth, 878 S.W.2d at 481-82; Giesler, 731 S.W.2d at 35. The trial court may also resolve factual disputes against the spouse who refused to provide the requested discovery. For example, it is reasonable to consider a spouse’s discovery violations when assessing his or her credibility. See, e.g., Hall v. Hall, 804 S.W.2d 411, 415 (Mo. App. 1991).

Mo. Civ. Proc. § 5503 (2013).

1 LNPG: Missouri Pretrial Civil Litigation § 7.24 (2019).

Id.

Id.

Mo. Sup. Ct. R. 61.01(d).

Davis v. Wieland, 557 S.W.3d 340, 347 (Mo. Ct. App. W.D. 2018).

Id. at 344.

Id.

Id.

Id. at 347.

Id.

Id.

Id. at 354.

State v. Bedell, 890 S.W.2d 702, 705 (Mo. Ct. App. S.D. 1995). See also Mo. Evidence § 6.7 (Mo. Bar 6th ed. 2017) (2014).

State v. Cannady, 660 S.W.2d 33, 37 (Mo. Ct. App. E.D. 1983). See also Mo. Evidence § 6.7 (Mo. Bar 6th ed. 2017) (2014).

Judith D. Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, 50 Washburn L.J. 365, 372 (2011).

Model Rules of Prof’l Conduct R. 4.4 (2019).

Model Rules of Prof’l Conduct R. 8.4 (2019).

Fischer, supra note 124 at 372.

Hicks, Jr., supra note 12 at 174.

Id.

Id.

Id.

Id. at 173.

Id. at 175.

Id.

Lawyers’ Duties, ABA (Oct. 3, 2016), https://www.americanbar.org/groups/litigation/policy/conduct_guidelines/lawyers_duties/.

Fischer, supra note 124 at 394.

Id.

John “Sean” Doyle, Creating a Culture of Civility in the Practice of Law, Law Practice Today (Jan. 14, 2019), https://www.lawpracticetoday.org/article/culture-civility-practice-law/.

Id.

Id.

Id.