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Disloyal collegiality in the prosecution and non prosecution of motions to compel

South Carolina attorneys are expected to be collegial.  Part of that collegiality is a reluctance to file motions to compel discovery responses and a frequent acceptance of discovery responses that are incomplete or evasive.  Another part of that collegiality is a general understanding that a demand for fees as part of a motion to compel should be withdrawn if the opposing attorney provides adequate discovery responses between the time the motion to compel is filed and the time it is heard.

What some may call a culture of collegiality, I consider to be, at times, disloyalty to clients.  Potentially it’s even a violation of the duty of loyalty contained in Rule 1.7 of the South Carolina Rules of Professional Conduct.

This doesn’t mean an attorney should file motions to compel whenever discovery responses are late or incomplete.  I will routinely grant thirty-day extensions to respond to discovery requests unless there is a trial approaching or I need discovery responses to defend a motion brought by the opposing party.  I routinely warn the opposing party or counsel of discovery responses I consider to be incomplete or evasive and give them some time to provide proper responses before filing a motion to compel.  I expect these same courtesies from opposing attorneys.

However, the culture of accepting incomplete or evasive discovery responses or withdrawing fee claims when discovery is properly answered between the date a motion to compel is served and the date it is heard places collegiality above loyalty to one’s clients.  Unlike the courtesies mentioned above, these “courtesies” are actually prejudicial to our clients.

Attorneys should not accept discovery answers that are incomplete or evasive.  Our Supreme Court has commented on the need for full and fair disclosure in discovery:

The primary objective of discovery is to ensure that lawsuits are decided by what the facts reveal, not by what facts are concealed.  The entire thrust of our discovery rules involves full and fair disclosure, to prevent a trial from becoming a guessing game or one of surprise for either party.  In this respect, the discovery process is designed to make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.

In re Anonymous Member of South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10, 18 (2001) (citations omitted).  South Carolina Rule of Civil Procedure 37(c) indicates that “an evasive or incomplete answer is to be treated as a failure to answer.”  Accepting incomplete or evasive discovery responses vastly increases the risk of surprise or prejudice to one’s client at trial.  Given an attorney’s duty of competence, See Rule 1.1 of the South Carolina Rules of Professional Conduct, it’s foolish to accept incomplete or evasive discovery responses in order to avoid filing a motion to compel.

All too often the threat of bringing a motion to compel for failing to answer discovery, or for providing incomplete or evasive answers, is ignored until after the motion to compel is filed and served.  Sometimes opposing counsel will then provide me proper responses prior to my motion to compel hearing and ask me to withdraw my request for fees and costs.  Most attorneys would do this but I believe doing so is disloyal to one’s clients.

The discovery rules anticipate that the opposing party or that party’s counsel will be required to pay the moving party’s attorney’s fees and costs if a motion to compel discovery is granted.  As Rule 37(d), SCRCP notes:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, 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, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.  If the motion is denied, the court shall, after opportunity for hearing, require 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, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Emphasis added.

By withdrawing a fee request from a motion to compel merely because the opposing party complied with discovery rules after the motion was served, I am having my client pay fees and costs to me that the client shouldn’t have incurred and that should justly be paid by the opposing party or attorney.  If there is some good defense to the motion to compel, I can ask my client to consider allowing me to withdraw my fee claim.  Otherwise, withdrawing one’s fee claim in the name of collegiality elevates collegiality within the bar over loyalty to one’s client.

When my clients provide what I consider to be incomplete, evasive or dilatory discovery responses, I warn them to expect to pay the opposing party’s fees from a motion to compel.  It’s a warning more attorneys should provide their clients.  A desire to be collegial cannot and should not outweigh our duty to be loyal to our clients’ interests.

 

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