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Stop Messing Around in Discovery

It has reached a point where we routinely take over cases.  In the last three months alone, we have taken over three ugly non-compete and trade secret disputes.  One of them has been pending for about three months.  One of them has been pending for about a year.  And the last one has been in litigation for two and a half years.  I’m not even joking: That case was filed back in 2013.

Having taken over several cases like this, especially in the non-compete and trade secret wheelhouse, I have seen certain disturbing patterns emerging.  We step into a case like this and its an absolute mess.  The biggest problem in these cases is discovery.

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Almost invariably, we are taking over a case where prior counsel messed around in discovery.  For whatever reason, documents that should have been produced were not produced.  Motions to compel have been granted.  Sometimes there’s a motion for contempt pending.  Previously served answers to interrogatories and requests for admission are often indefensible and not accurate.  So that’s the defensive discovery posture: Prior counsel has basically been asleep at the wheel, not handled defensive discovery correctly and handed the other side a ton of leverage.

Unfortunately, Florida state court is not as reasonable and orderly as federal court (where I much prefer to practice).  In state court, if a party gets in this discovery quagmire, the other side is going to exploit that case posture for all its worth.  They will file motions for enforcement, file motions for contempt, seek orders to show cause, try to strike pleadings, and set multiple hearings on virtually no notice.  That’s how state court works (unless you can get into a complex litigation or business court, which only exists in certain counties).

I have seen multiple cases where I believe the other side’s case on the merits is relatively weak, but they have gained the upper hand through this sort of discovery quagmire.  At that point, their goal is just to railroad the other side.  Pound them into submission through discovery, motions to compel, motions for contempt, hearings, etc.  Classic state court tactic (doesn’t work nearly as well in federal court).

On the flip side, when it comes to offensive discovery, these cases have another set of problems.  Either there has been no offensive discovery, or, that discovery has been poorly done.  Some lawyers – even big firm lawyers – are woefully deficient in their discovery skill-set.  Either they treat discovery like it’s an after-thought; the red-headed step child of litigation.  Or, they have their standard, boilerplate discovery plan for every case.  That’s just intellectual laziness.  Sure, you can have standard discovery for non-compete and trade secret cases.  But you’ll score the most points by diving in and building a discovery plan tailored to the specific facts of the case.

So, the upshot of all this:  We have seen lots of non-compete and trade secret cases where the party is up against the ropes.  They’re being slammed with discovery from opposing counsel.  The whole defensive discovery process has been botched.  And, on the flip side, the offensive discovery plan has been woefully deficient.  Simply put: These people are messing around in discovery.  And that’s a sure fire way to lose cases, particularly non-compete and trade secret cases.

Bottom line: Stop messing around in discovery.  Get on it immediately.  Be proactive.  Give the other side everything they’re entitled to.  Get everything your entitled to.  Don’t put discovery to the side and act like it will take care of itself or go away.  It won’t.  It’s a monster that just grows bigger and uglier the more you ignore it.

Jonathan Pollard is a competition lawyer and the principal of Pollard PLLC, a litigation boutique based in Fort Lauderdale. He has extensive experience litigating non-compete, trade secret and antitrust cases.  For more information, call his office at 954-332-2380.  

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