Denying Discovery: A Favorite Tool for Cheating Litigants in Court

Alabama Governor Bob Riley recently decided to settle a lawsuit rather than give testimony under oath. A Riley spokesperson said the governor made the decision only because he wanted to save taxpayers the expense of protracted litigation. But as Bob Gambacurta of the Montgomery Independent pointed out, Riley had serious personal reasons for avoiding sworn testimony--and they had nothing to do with concerns about taxpayers.

Riley and his lawyers tried to protect him from testifying by having the judge dismiss the case. But when the judge refused and set a tight deadline for completion of depositions, Riley was stuck--and so he caved.

This episode reminds us of three truths about discovery--the portion of a lawsuit that is designed to help uncover facts. Common discovery tools include depositions, interrogatories, subpoenas, and requests for production of documents.

What are the three truths of discovery?

* If you are in the wrong, as Riley almost certainly was, discovery is your worst nightmare.

* If you are in the right, discovery--at least in theory--should be your best friend.

* In a world of corrupt judges and lawyers, discovery is the No. 1 area where deserving litigants are likely to get cheated.

How do I know? I've been there and had it done to me--more times than I care to count.

How does it work? Here are a few techniques that are commonly used to ensure that the truth is obscured in court:

* The Solo Screw Job--This one almost has to be performed by the judge because he/she is the only person who has the authority to pull off a one-person show. This is likely to involve a Motion to Dismiss. In legal parlance this is known as a Rule 12(b)(6) motion--failure to state a claim for which relief can be granted. Pleading requirements have been heightened recently, going slightly beyond the "notice pleading" rule that has been in place for years. But under the law, a Rule 12(b)(6) motion still should almost never be granted. Such a motion, if granted, essentially cuts off a case before it gets started--and ensures that discovery will not take place. That's why Riley's lawyers filed a 12(b)(6) motion, and that's why it's a favorite tool of other scoundrels who have cheated someone. In fact, a defendant who files a 12(b)(6) motion is essentially saying, "Yes, I screwed this person, and I'm going to try to pull every technicality in the book to make sure I get away with it!"

Issues related to immunity or statute of limitations are usually the only legitimate reasons for a judge to even consider a Motion to Dismiss. And many times, discovery is required to determine if those defenses are legitimate.

Still, judges sometimes will unlawfully grant such motions to protect their favored constituents--namely, members of the legal community. I saw this happen in the legal-malpractice case I brought against Jesse P. Evans III and Michael Odom, the lawyers I originally hired to defend me in the bogus lawsuit brought by our neighbor. I laid out my claims in significant detail, going way beyond the level required to overcome a Rule 12(b)(6) motion. Lawyers from Starnes and Atchison, representing Evans and Odom, surely knew that. But they filed the motion anyway, hoping that Judge Robert Vance would want to protect his lawyer buddies and make sure they didn't have to answer questions under oath. The Starnes lawyers were right; Vance granted the motion and completely ignored black-letter law in the process.

(By the way, we covered the Starnes firm yesterday in a post about a pedophile in the U.S. Justice Department. The Starnes folks associate themselves with only the classiest people. And when journalist Margie Burns attempted to question them about that association, they developed a remarkable case of amnesia. Burns has more coming on that story, by the way. We can't wait.)

* The Double Screw Job--This usually happens when the judge is buddies with opposing counsel. A classic example came when I filed a counterclaim against our criminally inclined neighbor Mike McGarity. William E. Swatek, McGarity's lawyer with a 30-year record of unethical behavior, plays golf with Shelby County judges--and God only knows what other favors are passed back and forth. When I sought to conduct discovery on our countersuit, Judge G. Dan Reeves simply cut it off. He declared that discovery was over, even though it wasn't past the deadline, and we were moving ahead to trial.

* The Triple Screw Job--This is when the judge, opposing counsel, and your own lawyers all are working against you. I've experienced this one several times, the most recent coming in our lawsuit against unethical  debt collectors NCO and Ingram and Associates. Allan Armstrong and Darrell Cartwright, our so-called lawyers, informed Mrs. Schnauzer and me that we would not be conducting any depositions. (I should have known something was up right then.) When the other side continued to stall on answering our requests for production of documents, Armstrong and Cartwright refused to push. When I repeatedly suggested that we file a motion to compel, the response was, "Well, judges don't like discovery disputes, so it would be best for the parties to work this out among ourselves." Except it never got worked out, and evidence suggests our lawyers didn't even try very hard. In our answer to the defendants' motion for summary judgment, they simply noted that discovery was not complete and requested additional time if the judge had any inclination to grant the motion. You can guess what happened next: The judge ignored the notation and proceeded to screw us. How did Armstrong and Cartwright react? When I questioned them about the bogus ruling and demanded that they file a post-judgment motion, they violated our attorney/client privilege, broke the contract we had with them, and withdrew from the case.

Armstrong and Cartwright are the same characters who acknowledged that we'd had horrible experiences with lawyers, that we had every reason to be suspicious about anyone in the "profession," but asked us to "trust" them. They really wound up earning our trust, didn't they?

I will be writing much more about this episode. But the bottom line is this: Mrs. Schnauzer and I have indisputable, tape-recorded evidence of both state-law fraud and federal-law claims against NCO and Ingram and Associates. But thanks to our own lawyers joining forces with the other side--which includes such "luminaries" as Laura Nettles of Lloyd Gray and Whitehead and Wayne Morse of Waldrep Stewart and Kendrick--we never came close to completing discovery. As a result, we wound up getting screwed--from three different directions.

(By the way, one of the opposing lawyers has developed a habit of repeatedly sending me snide, anonymous remarks about this case. It's clever, taunting little things like, "Hey, how is your debt-collection case going?" Apparently it gives her a sense of pride to have a judge rule unlawfully in her favor--to "win" a case because the other party is cheated, not because of any ability she has as an attorney.

(These communications almost certainly are a violation of the Alabama Rules of Professional Conduct. But this woman, like many lawyers, wouldn't know professional conduct if it bit her on the ass. I've invited her to identify herself, and I will engage her in a public debate--open to all Schnauzer readers--about the facts and law in the case. Haven't heard back from her.

(I also asked her if she has knowledge about what caused my wife to be cheated out of her job at Infinity Property and Casualty, seeing as how opposing counsel in the debt-collection case has strong connections to Infinity. This bold lawyer has not responded on that topic either. We will keep you posted.)

As for the "Triple Screw Job," it reminds us of a quote from "The Todd," the sex-crazed surgeon from Scrubs: "This is a threesome," The Todd once said, "and it's not the cool kind."

Speaking of The Todd, we could stand to lighten the mood around here. Here is Todd's version of "The Greatest Conversation Ever," with our hero finding all kinds of meaning in the name "Perry Cox." Enjoy.