I have a brilliant method to beat this technique, if I do say so myself, and I have not seen one other attorney who uses this killer method.
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 fax 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 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. Continue reading