Michael Sean Quinn, Ph.D, J.D., Etc.

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

The Lord only knows what is really effective, but I’m sure the following is not sanction-able, at least on the first time it is done.  Besides, it may be that the other side will  challenge the move.  Even if their objection is sustained in part–and that is all they get out of their motion–it is unlikely that there will be attorney’s fees awarded. There are two ways to do this; as you might expect, I prefer the first. So here we are.

Method One

It is not uncommon for a party to set forth a string of definitions and demand that the side to whom discovery is directed answer in accordance with them.  I suggest that this is dangerous for the party answering because there are almost always some deviations from the common, ordinary usage of language  hidden in the definitions.  The party answering the Requests (for Admissions or for Documents) or the Interrogatory Questions.  The party asked, may not understand the definitions nor the lawyers.  (That has happened to me several times when the definitions section has taken up more than a single spaced page.)

One way to do this is to object to the some of the definitions that are confusing.  The other way to do it is to object to the whole list.  Often in larger cases there are a lot of definitions.  Sometime they are obscure, confusing, out of kilter with common usage, deviating from technical–or scientific–usage, and sometimes they are highly ambiguous. If the party answering the question makes a mistake it may come back to haunt them later on.  (Examples of maliciously crafted definitions are especially common in the “new” cyber area. Consider “frame,” “malware,” “domain,” “Trojan,” “cloud,” “BigData,” even “virus,” especially of this or that type.)

I have even seen one lawyer in the grips of hubris, just as he was for all of his life, taking delight in adding clause-terms to an already long, long, superlong set of components already created  by clause upon clause. In any case, he nabbed clauses from other oppressive concatenations that he had not considered before.   He ran into my office and said with a delighted, excited voice, “Look! I have found a new one.”  This he added to a definition of something that was already 2.5 pages long.

Some years later, I called him and said that I needed a new set of definitions, since I had left expert witnessing and gone back to litigation.  He sent me his BigDefinition, and it was now 3 pages long.  I asked him if he had received objections, and he said “No”; he then said that on several occasions opposing counsel had congratulated him for his Samuel Johnson attentiveness and energy.  All I knew for certain on that occasion was that opposing counsel was satirizing my friend’s work or  had never read a single page of Johnson’s dictionary.

I myself have played a fantasy game in my head that I would make up in long definition. I would insert meaningless terms and take pleasure pondering all the junior associates at the Whyte & Shoo law firm who would have to scurry around trying to find a nonexistent definition clause.  How do these fun sounding act? Consider the following:  Gilgamessian, Heidighereous, Achillesious, AugusAqu, Qantias, Godelion, Balthusian, and so forth.  I’ve never, of course, actually done this, but I write down such  possibilities in boring depositions taken by condescending pricks or prickettes, who themselves do more than stumble along, or in some cases waddle.

I can’t seem to stop.  I cannot seem to repent. I have confessed by continual sin of temptation.  I consider joining the “Nasty Satire Anon” group that periodically meets at the local bar, but I just cannot do it any more than I can join the “Love of SraSean Addiction” group.  Besides, the NSA group just reads idiot definitions to each other.

My suggestion is to object to all the definitions; state you will answer the questions using ordinary English, and be done with it.  The grounds of the objection are “multifarious.” (Now, how’s that for a lawyerly thing to write.  Alas, that is an actual word.  Try it out in oral argument: “multifarious absurdities,” and so forth.)

  • Not authorized by the rule. 
  • Too many. 
  • Group as a whole doesn’t hang together.]
  • Overly burdensome. 
  • Possibly a trap. 
  • Inherently dangerous.
  • Unnecessary since this is not a _______ type of case. (patent, copyright, stealing–in some sense–cyber stuff). 
  • Takes too long to get the job done.
  • And so forth.
  • Not all of these are necessary, of course.
Method Two

Pick the phrasings of several definition clauses.  Always pick the worse, often for vagueness. Claim that these are so confusing the whole set of brambles must go.

Another version of Method Two is to reject the whole batch on the basis of a few definition problems in different definitions and indicate that the questions will be answered in ordinary English.

Written Instructions

“Instructions” that are outside the rules may well be invalid anyway.  Object to all of them, as a whole group. Either they are within the rules, in which case, they are not needed, or they are outside the rules and are unsupported anyway.

They can be ridiculous anyway.  Today I received an instruction that instructed my client to produce lost or destroyed documents, in the same paragraph, it said provide information about the lost documents (as if this was an interrogatory).  It also asked for “mechanical and electronic data recordings.”  By doing this and nothing more, the lawyer missed a whole area of exploration.

In the same set of boiler-made instruction, it is suggested that the phrase “in support of” includes “any documents which ‘touch or concern’ anything having to do with your claim.”  Of course, the word “touch” itself is ambiguous–in this case, where two meanings have nothing to do with each other. Even in a single area of the ambiguity, how “touch on” could possibly be understood in a rational matter.

How’s about this one in a Request for Production, “Furnish all information available to you and known by you, in your possession or that of your agents and attorneys, or appearing in you records.”  What about memory?  Is that in my possession? Remember all the “or” words in the sentence. Does this Request refer to snippets? What about the idea of information.  I would think that all “information” has to contain true proposition.  False propositions do not constitute information with respect to what they are about. This instruction seeks information in the possession of the party’s lawyer.  This instruction–this demand–is dishonorable, for obvious reasons.

And there is plenty more.  But not everything can be said in one blog.

Originally posted on 02/24/2014 @ 5:16 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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