Maryland Injury Law Center
Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)
No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.
A new Wisconsin case illustrates this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but made it clear his client would not appear for deposition.
A Wisconsin federal court judge excused the plaintiff’s failure to appear and granted Plaintiff’s motion to compel discovery. The court also ordered the company to pay one quarter of the fees and costs that the Plaintiff incurred in filing the motion to compel. (This happens in Maryland state court pretty much never unless counsel punches someone in the face and then refuses to apologize for it. I think the motion for financial sanction success rate in Maryland has a lot of zeros to the right of the decimal.)
Plaintiff’s counsel should have filed a motion for protective order. If I were the defense lawyers’, I would argue that Plaintiff can’t unilaterally not appear for deposition without a court order. But I see this all the time. Judges give you a pass on these things if they agree with your position. They often overlook a lot worse.
It is hard to have a rough justice rule about how discovery proceeds because there are so many variables to weigh in deciding who is on the right side. So the uncertainly is an unfortunate byproduct. The worst part of having no clear rule for plaintiffs’ counsel is that defense lawyers who bill by the hour have the time to stake out ridiculous positions on these kinds of things. (Here is one.) Rarely, are they willing to take their version of justice to the court but quelling the nonsense takes up far too much time useless back-and-forth correspondence?