In an insurance coverage dispute titled Select Comfort v. Arrowood Indemnity Co., Select Comfort sought information from Arrowood, the insurer, on how much the insurer had paid lawyers in other cases in the Northern District of California for other insured claims. In response to Select Comfort’s discovery request, Arrowood argued the information was “irrelevant, protected by attorney-client privilege, and/or burdensome to produce.” (Practice Pointer #1: you lose credibility when you object to discovery “in the alternative” (that is, objecting that “the information is irrelevant or, if it is relevant, it is burdensome to produce.” What would have been wrong with saying “irrelevant AND burdensome”?) (I am nit-picking on this one, I admit.)
Select Comfort brought a motion to compel the information. In response, Arrowood submitted affidavits saying the information “did not exist.”
We were not at the hearing in which Arrowood’s counsel basically conceded the client’s slipshod and apparently disingenuous initial responses to discovery. I imagine that was not very fun for the unfortunate lawyer. One has to assume that the heat under the Klieg lights of the court’s interrogation was sizzling to exact that kind of confession from counsel.
The important take-aways here are that clients sometimes confuse “I DO NOT WANT TO DO THIS” and “THIS IS LITERALLY IMPOSSIBLE” and clients sometimes confuse “IT WOULD BE A LOT OF WORK TO FIND THAT EVIDENCE” with “THE EVIDENCE DOES NOT EXIST” (like children, come to think of it).
Practice Pointer #2: Opposing lawyers and courts are not likely to indulge your children clients as much as you might be tempted to do. Educate your clients.
Practice Pointer #3:
Select Comfort’s aggressive attitude with regard to Arrowood might have been a bit over-aggressive. The Court rejected several bases for Select Comfort’s claimed sanctions (“improper verification of interrogatory answers,” for example (here, at page 8)). Who cares, you ask? Select Comfort took about five shots at Arrowood and scored one hit. So long as they got the sought-after sanctions, what’s the big deal?
Perhaps a fair point. On the other hand, maybe a more measured and focused motion for sanctions would have been less work and maybe the Court would have awarded a greater percentage of Select Comfort’s fees?
(Is there not something bitterly disappointing when a court agrees with you that an adversary has put you through a one-year long obstacle course of obstructionism and then turns around and cuts your attorneys’ fee request in half? I note that the court expressly approved Select Comfort’s lawyers hourly rates (see footnotes 1 & 2). Could there be a deeply cynical undercurrent in these common attorneys’ fee “hair cuts” that the courts are skeptical of the true amount of hours the lawyers spent? If judges’ fee hair-cuts are not attributable to cynicism, if judges are basing their fee award reductions on some sense they have of the “appropriate” amount of time investment the lawyers “should” have undertaken, where do the judges derive that data from? From their clerks (many of whom have never practiced law)? From their own experience (which some do not have and others have not had for decades)? When was the last time the judges billed time and worked up briefs from scratch?
POST-SCRIPT: This case is in trial this week before a jury and U.S. District Court Judge Joan N. Ericksen (D. Minn) in Minneapolis. If you have the time, you might want to check out some seasoned civil litigators in trial, you might consider visiting, although this clearly will not be made into a major motion picture any time soon.