Plaintiff’s counsel is not a litigation lawyer. She was retained by the plaintiffs “as a favour” because they all speak Serbian. This was plaintiff’s counsel’s first examination for discovery of her career. It is her evidence that she was not obstructionist. In her view, she was simply attempting to protect Tondera, whose deceased grandfather was found, based on documents notarized by the defendant Dorothy Fox (“Fox”), to have died intestate. The grandfather had held property in Montenegro which, according to the plaintiff, was allegedly transferred based on fraudulent documents.
 Her further evidence is that because Tondera kept saying “I guess” or “I don’t remember” counsel was following up her client’s evidence by asking “Do you know?, to ensure that the transcript would be clear. Counsel also objected to the repetitive nature of defence counsel’s questions. Plaintiffs’ counsel asserts that the examination for discovery was improperly terminated. It is her submission that the examination should have continued and thereafter the defendants could have moved on the refusals, if they chose to do so.
 Rule 34.14(1) states that an examination may be adjourned when there are improper interruptions, when the examination is being conducted in bad faith, when the party being questioned is unresponsive or when there are improper refusals to produce documents. Master Dash in Madonis v Dezotti 2010 ONSC 2180 (CanLII), 2010 ONSC 2180 details a set of principles for proper conduct at an examination. They may be summarized as follows:
(a) An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions.
(b) The lawyer for a party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party, either to not answer or, to answer under objection.
(c) The lawyer for the party being examined may interrupt the examiner if necessary to ensure that the witness and counsel understand the question.
(d) It is the party who is being examined and not his other lawyer.
(e) There is often a spirit of co-operation at an examination for discovery where counsel allow some latitude and permit the lawyer for the witness to offer assistance.
(f) It is the duty of the party and not the lawyer to correct an answer given even if the answer given by the party is wrong.
(g) Counsel must not communicate with his or her client during the examination except on the record and even then, only sparingly so as not to interfere with the flow of the examination.
 As Case Management Master, I have had some history with this action. In my view, much of the difficulty thus far in this action stems from plaintiff’s counsel’s lack of familiarity with the litigation process. As opposed to finding her behavior obstructionist, I find it obtuse, but with good intention – that being to protect her client. Plaintiff’s counsel has, throughout the proceedings, been not only critical, but also suspicious of defence counsel. Defence counsel, in response, has taken a particularly hard line.
 Plaintiff’s counsel clearly failed to accept the relevance of the questions asked to the claim and/or to the defence. She should have simply refused to answer the questions. If she was of the view that there was duplication, or multiple confusing questions which I believe there were, she should have simply stated on the record that the question has already been asked and answered, leaving it to a Master on a motion to determine whether the questions are proper. An experienced litigation lawyer would have done so.
 There is a clear distinction to be drawn between questions refused on an examination and improper conduct. Although plaintiff’s counsel’s interruptions were annoying, I find them to be based on lack of experience and her feeling of necessity to be overly protective. She was instructing her client to answer questions truthfully based on her recollection. Perhaps her demeanour was somewhat aggressive rather than particularly civil. The Principles of Civility provide lawyers with some guidance in litigation where it is stated that “counsel, during examinations for discovery, should at all times conduct themselves as if a Judge were present”. I do not find based on the principles outlined above, that there has been improper conduct on the part of plaintiff’s counsel.
 As Tondera’s examination is incomplete, it is ordered that Tondera shall re-attend for her examination. In an effort to assist the parties to keep this action moving forward, I will make myself available by telephone at the re-attendance of Tondera’s examination for discovery and at the examination of Maryon Tondera, to make rulings on questions in ‘real time’. All counsel are urged to operate with a spirit of co-operation! This action is crying out for resolution so the sooner the parties can get through the discovery process to reach a mediation or pre-trial, the better all parties will be served.
 With respect to costs, each party shall bear their own expense for costs thrown away and for costs for re-attendance and for costs of this motion. None of the parties’ hands are completely clean. [emphasis added]
Archive for the ‘discovery’ Category
American law firms and lawyers often serve subpoenas on Canadians as non-parties to the U.S. civil litigation. When they do so, they presume that the subpoena is valid and enforceable in Canada.
Well, it’s not. (more…)
The Quebec court decision in Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2011 QCCS 2376 (CanLII), involved an application for letters rogatory in two tobacco industry class actions (recently settled on July 4, 2011, between the Plaintiffs and the Government of Canada. The Defendants had no part in this Agreement.)
The class plaintiffs sought to examine two attorneys: John Meltzer of London, England and David Schechter of Louisville, Kentucky, USA , whom they alleged were involved directly or indirectly with the spoliation of evidence (destruction of documents) by Imperial Tobacco Canada Ltee (“ITL”) during the early 1990′s: Mr. Meltzer, then of the firm Lowell, White, Durrant, acted as outside counsel to British American Tobacco (“BAT“) and Mr. Schechter appears to have been in-house counsel at Brown and Williamson (“B&W“).
The Plaintiffs sought an order compelling each Attorney “to appear (near his place of business) to be examined, by way of a videoconference, by the attorneys for Petitioners on all facts of which he has knowledge with respect to the litigation between the parties and to give communication of any documents that may be in his possession and which are relevant to this litigation”. (more…)
Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”May 5, 2011
Dustin B. Benham (Texas Tech University School of Law) has published “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”, SMU Law Rev., Vol. 64, 2011.
The abstract reads:
The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.
This article proceeds in five parts. Part II examines the origins and history of modern post-judgment relief before and after the adoption of Rule 60. Next, Part III explores the distinction between intrinsic and extrinsic fraud in the context of independent actions. Part IV of this article addresses the rise of plausibility pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In these cases, the Supreme Court overruled Conley v. Gibson, announcing a new pleading paradigm that applies to all civil actions filed in federal court, including a judgment-relief action. In a move away from notice-pleading, the Court held that a civil complaint must plausibly allege a cause of action. Finally, Part V of this article contends that this increased pleading scrutiny serves as a better screening mechanism for post-judgment fraud claims than the distinction between intrinsic and extrinsic fraud does. By screening fraud claims individually, a court can better assess whether the claim could have been raised in the original litigation. Screening cases for this trait results in a better balance between the often-competing values of judgments that reflect truth and judgments that are final.
(Number of Pages in PDF File: 59)
The article may be downloaded via SSRN here.
- Decision of Interest: Twombly/Iqbal and Affirmative Defenses (lawprofessors.typepad.com)
- The Situational Effects of Iqbal (thesituationist.wordpress.com)
S.I. Strong on “Jurisdictional Discovery in Transnational Litigation: Extraterritorial Effects of United States Federal Practice”January 17, 2011
S.I. Strong (University of Missouri School of Law) has published “Jurisdictional Discovery in Transnational Litigation: Extraterritorial Effects of United States Federal Practice” Journal of Private International Law, Vol. 7, 2011. The abstract reads:
Jurisdictional discovery is a largely unknown, uniquely American device that combines two of the more internationally problematic aspects of United States civil procedure, namely an exceptionally broad view of extraterritorial jurisdiction and an expansive approach to pre-trial discovery. The mechanism – which is widely available and often used in cases where the defendant challenges the jurisdiction of the court – comes into play before the court’s jurisdiction over the defendant is even established and allows plaintiffs to ask defendants to produce a vast array of documents and information that can be used to justify the plaintiff’s claim that jurisdiction in this court is proper. This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
The article is available for free download on SSRN here.