Often, in the midst of family law litigation, one party will issue discovery requests that the other party perceives of as excessive—essentially a fishing expedition. While I think it misguided, the trend among family law judges is that if someone’s word processor can spit it out, and it could in any way lead to the discovery of admissible information, almost any discovery meets the standard of Rule 26(b)(1), SCRCP, while glossing over the limitations on discovery authorized under Rule 26(a)(a) and 26(c), SCRCP. Thus, unless a party has gone over the numeric limitations of supplemental interrogatories [50] or requests for admissions [20], I typically counsel my client to respond to all discovery requests–while sometimes imposing temporal limitations if I believe the time frame requested is itself excessive.
However, when my client is the recipient of excessive discovery requests, the typical initial reaction is to ask me to issue the same requests back. I call this tit-for-tat discovery and I discourage its use. There are three solid reasons to not do so. This blog explains my reasoning.
The first reason is that it conveys laziness. As I have noted before, one can gain insight into an opposing party’s thought process (or at least the attorney’s thought process) from the discovery that gets issued. One insight I gain from tit-for-tat discovery is that the other side is too lazy to put much thought into the case. The other insight I gain is that the other side is being reactive: rather than thinking about the facts that they might wish to establish through discovery, they are simply aping my discovery.
The second reason to avoid tit-for-tat discovery is that it wastes precious resources. The limitations of 50 supplemental interrogatories and 20 requests for admissions discourages wasteful interrogatories and requests for admissions. Family court litigants are rarely similarly situated and discovery that is appropriate for one party may not be appropriate for the other party.
In a case where one party is seeking alimony, the other party should be very interested in exploring the issue of current adultery as it creates a bar to alimony. However, seeking similar discovery from a party not seeking alimony is wasteful. Using a lot of discovery requests to uncover financial information from a spouse who controlled the finances is an intelligent use of discovery. Using a lot of discovery requests to uncover financial information from a spouse who did not control the finances is wasteful.
Even with requests for production, where there are no set limitations, tit-for-tat requests are problematic. Issue enough requests and the other side may seek a protective order. Issuing requests for production tailored to both one’s case and the other side’s case (which is essentially what tit-for-tat discovery is), will more quickly lead to a legitimate argument that one’s requests for production are oppressive or an undue burden.
The final reason to avoid tit-for-tat discovery is that is weakens ones claim for attorney’s fees and strengthens the other side’s claim. I am often pleasantly surprised to learn that opposing counsel billed more time issuing tit-for-tat discovery than I billed for producing it: it should not take much time to turn “Plaintiff” to “Defendant” and “Defendant” to “Plaintiff.” Attorneys who claim it took significant time will have explaining to do when they testify to their fee affidavit.
Further, litigation conduct is a legitimate factor in awarding attorneys fees. The party who issued tit-for-tat discovery caused the other party to incur fees to respond. Spending significant time to respond to discovery that had little impact on the contested issues is a factor that the court can consider in awarding fees. If asked why I issued a discovery request I want a better answer than “the other side did it first.”
Responding to discovery is an annoyance but, to the extent it can narrow contested issues at trial or assist in trial preparation, it is a productive annoyance. While there is undeniable satisfaction in making the other side do the same tasks they are asking you and your client to do, it is a reactive and immature satisfaction. Wise attorneys conduct the discovery they believe helps their clients’ case. One should certainly review the other side’s discovery requests to determine if some of those requests should be reciprocated. By merely aping the other side’s requests is counterproductive.
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