I have a brilliant method to beat this sleazy attorney technique, if I do say so myself, and I have not seen one other attorney who uses this reminder approach.
First, here is how it all comes about. I serve discovery, wait 40 days for the responses, nothing comes, I write a letter to opposing counsel informing him that I never received the responses, and realizing he forgot about all that damn discovery, the attorney responds, “Discovery? What discovery?” He pretends never to have received it. Never mind that I have absolute proof that he did receive it. I send most discovery by overnight mail, and the service I use either obtains a signature or sends me a picture of the discovery sitting on the receptionist’s desk or stuck in the door of the office. But this is a sleazy attorney we are talking about here. He doesn’t care that I know he’s lying.
Here is what used to happen. I would say, “OK [you stinking liar], I’ll email over another copy of the discovery and you can have ten days to answer.” He would fight me and demand the full 30 days, or thank me for the ten days and then still not serve the responses. I would then bring a motion to compel, he would serve the responses a day or two before the hearing, and then report to the court that it was all just a big misunderstanding because he never received the original discovery. Despite all my proof to the contrary, the court would declare the motions moot because the responses were served, and on that basis deny any sanctions, or at best award so little in sanctions that they didn’t come close to covering the time spent on the motions.
These same attorneys often use the modified technique of “Motion? What motion?” when they realize they failed to file an opposition on time.
There are a lot of overworked and disorganized attorneys out there, and I have run into a number of them who basically use motions to compel as their tickler system. The simple technique to beat them at this game is to send courteous reminder letters. When I sense the opposition is one of these attorneys, I make it a practice to send reminder letters for all upcoming deadlines.
Dear Mr. Jones, I’m just writing to remind you that your client’s responses to our first set of document demands, special interrogatories and request for admissions are due on April 3, 2013. I can’t be too flexible with the deadline because I need these responses for our summary judgment motion which I want to file by April 20, but if you need a few more days please let me know. Also, don’t forget that our mediation return date is May 15, so please be sure to respond to my earlier correspondence about the suggested mediators.
“But if the attorney is willing to lie about receiving the discovery, what’s to stop him from lying about receiving the friendly reminder letter?”, you ask. I think the answer is that most of these attorneys don’t want to lie, they are just disorganized and feel that there is no other choice when they blow a deadline. By sending the letter, you put the deadlines in front of them and are genuinely helping them to remember those deadlines. I also think that even they see the evidence against them building up. Now I’ll be able to show the judge the signed receipt for the discovery, along with an email confirmation for the reminders.
“But what if I want him to blow the deadline, so that he waives objections or so that the requests for admissions can be deemed admitted,” you ask. You are just full of questions, aren’t you? Well ask yourself this question: Does that ever really work? He’ll just seek relief, making the same claim that he never received the discovery. All you’ll do is create a lot of law and motion work.
Bottom line, if opposing counsel is disorganized, don’t let your case suffer as a result. Reminder letters will keep him organized and create a great record if you need to bring a motion.
[UPDATE 1-24-2023:] I first published this article 10 years ago (wow!), and not much has changed. Opposing counsel still try to pull this trick, and I have updated my method slightly.
In my jurisdiction, the rules provide that you can’t serve the opposition by email unless the attorneys have agreed to service in that manner. It makes life infinitely easier to so agree, but the sleazy attorneys refuse to do so specifically so they can claim lack of service.
But there is no rule against providing courtesy copies. I still serve opposing counsel by overnight mail (which also knocks three days off their time to respond), and I also email courtesy copies of the discovery. This results in two confirmations that opposing counsel received the discovery. Even with the picture from my overnight service, showing the envelope on their front door or in the hand of their receptionist, they will claim they did not receive the discovery, but to claim also that they never received the email is often a bridge too far for even the most ardent sleazy attorney.