3rd Circuit Doesn't Dig 'Hiding the Ball' Game

Posted In Cooperation

In a case squarely pitting cooperation against adversarial discovery practices, a unanimous three-judge panel of the 3rd Circuit was not amused by defense counsels' obstructionism. Two of the three judges on the panel are members of the Delaware Bar: Judges Thomas L. Ambro and Kent A. Jordan.

[T]he defense lawyers walk away unsanctioned, but their victory didn't come without a price. Having taken the appeal to remove any smudge on their reputations, they succeeded in their two key legal arguments, but were made to endure a lecture on ethics and civility from the 3rd Circuit panel in a reported decision.

In the opening paragraphs of her 50-page opinion, Judge Dolores K. Sloviter set a tone of disappointment and finger-wagging. And she directed her ire at both defense counsel and the plaintiffs attorneys.

"It would be reasonable to expect ... that experienced attorneys, especially those who have handled major litigation, would be able to proceed through the discovery and pretrial stages with a conciliatory attitude and a minimum of obstruction, and that, under the guiding hand of the district court, the path to ultimate disposition would be a relatively smooth one," Sloviter wrote.

But the Grider case, Sloviter said, "shows exactly the opposite."

Joined by Judges Thomas L. Ambro and Kent A. Jordan, Sloviter found that "the spirit of the discovery disputes was hostile. At the very least, it lacked the civility and professionalism one expects from such experienced attorneys." The parties, Sloviter said, "were unable to reach agreement on even minor matters and the discovery was noncompliant, delayed, or protracted" and the "bickering among the parties ensured that the deadlines would not be met."

Hide the Ball trickMagicians and (some) lawyers say: "Have ball, will hide."