Lawyers love strategy. Litigators especially so. Don’t believe me? Spend some time at a county bar cocktail hour and you’re sure to hear a war story about somebody’s greatest strategic success. Stick around until later in the evening and you might hear a story about a great strategic failure too. Hear enough of these stories and you’ll learn that sometimes the best strategy is the simple strategy. I benefited from a refresher course in that lesson earlier this month.
Some time ago, we received a Rule 4:14-2(c) deposition notice (the New Jersey equivalent of a Fed.R.Civ.P 30(b)(6) notice) for the deposition of a series of corporate representatives on a series of designated topics. The topic descriptions were confusing (and, we suspected, purposefully so). Among other issues, the plaintiff sought production of a representative to testify regarding documents to which the plaintiff had applied self-serving definitions.
What do I mean? Well, one of the plaintiff's theories turned on the claim that our client had terminated a former-employee. Notwithstanding that all of the evidence in the record made clear that the former-employee had resigned, the plaintiff characterized a memorandum memorializing the events of the meeting at which the former-employee resigned as the "Termination Memorandum."
Why? We didn't know – at least – not at first. This was a known unknown, that is, something we knew we did not know. We suspected that the plaintiff's goal was to create a fact through that self-serving definition. In other words, we suspected that if we produced a representative in response to the description as drafted, the plaintiff later would claim that the production of the designee was a tacit admission that the document was, in fact, a "Termination Memo" and that the former-employee had, in fact, been "terminated."
This triggered the strategy discussion that takes place every day in every law office. (Okay, maybe most days in most law offices, but you get the point). Was this an accident or did the plaintiff's counsel draft the description to do as we suspected? Should we do our best to strategize against a known unknown? Or, should we find a way to turn that known unknown into a known known, and run the risk that we tip the plaintiff off to the very strategy we were trying to counter?
We chose the simple approach and asked the plaintiff's counsel if they were trying to do what we thought they were trying to do, and their response (or lack of a denial) confirmed what we expected. With a simple question we turned a known unknown in to a known known.
How did this all play out? We sought a protective order, argued that the plaintiff's counsel's lack of a denial evidenced the true purpose of their discovery demand, and resolved that aspect of the motion without the need for oral argument.
Have you had similar success from asking a simple question? If so, feel free to leave your war story in the comments.
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