Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Discovery Misconduct

Faced with a well-bankrolled, stone-walling respondent in litigation, a plaintiff’s attorney faces formidable odds.  If the defendant denies the existence of discoverable electronic evidence and opposing counsel declines to cooperate, pursuing discovery can be both costly and fraught with issues of information security and confidentiality.  But if such evidence is discovered and is demonstrably relevant to the cause of action, the costs for both defendant and defendant’s counsel may be significant. As the court noted in awarding fees against the defendant and warning counsel in a recent case, “Counsel has a duty to assure that the client has provided responsive documents.  It is not sufficient to just take a client at their word.  Counsel must inquire about what searches were performed to find responsive documents.” Order, James E. Fields, et al. v. Anthony Emmerich, et al., File No. 02-CV-11-5482, Anoka County District Court, 12/11/2012.

Where the defendant’s actions are fostering delay and causing the litigation to be more expensive for the plaintiff than need be, not every litigation will justify the expense necessary to perform the extensive examinations necessary to discover a “smoking gun.” But it’s worth noting that if parties are causing unreasonable expense, the courts will award those expenses, and rightly so. Furthermore, courts have high expectations for attorneys to educate their clients, and in some cases insist that their clients hire proper consultants to fully respond to discovery.

Joan M. Quade

Barna, Guzy & Steffen, Ltd.

Coon Rapids


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