Trial Magazine

As a former defense attorney, I can attest that some defendants and defense attorneys attempt to use obstruction as a litigation tactic. But defense attorneys, like all attorneys, have an ethical duty to zealously advocate for their client¹ and adhere to the applicable court rules, statutes, and ethics rules in the performance of their duties. And I believe that most defense counsel endeavor to do so.

However, defense counsel also are motivated to keep their clients happy to keep their continued business. The defense attorney’s job is to try to get the plaintiff’s case dismissed as cheaply and as quickly as possible, and if that fails, to prevent a judgment for the plaintiff at trial. One effective defense strategy is to cause delays so that plaintiffs run out of time to obtain the evidence they need to build a prima facie case. Another effective defense strategy is to withhold evidence altogether.

No defendant wants to be involved in litigation, and some defendants refuse to cooperate with the litigation process. For example, defendants may withhold evidence and information from their own attorneys or pressure their attorneys to be obstructive. Regardless of the reason, we, as plaintiff attorneys, have a duty to push through and get the evidence that we need to obtain justice for our clients.

Responsive Pleadings

Federal Rule of Civil Procedure (FRCP) 8 requires defendants to respond to a complaint by stating in short and clear terms the defenses to each claim and by admitting or denying the allegations against them.² Defendants are required to respond fairly to the substance of each allegation. If an allegation is partially true, the defendant must admit the part that is true and deny the rest. Defendants are not allowed to deny a factual contention unless the denial is warranted by the evidence or, if specifically identified, is based on a reasonable belief or a lack of information.³

Objections to allegations. In my experience, defendants generally admit facts in the complaint that are helpful, or are not harmful, to them. When I defended cases, I tried to admit at least some allegations—I never wanted to have to explain to a judge why I had denied every allegation in the complaint. However, if I thought that admitting the allegation would help the plaintiff build their case, I would deny the allegation if I could do so in good faith. If I could not deny the allegation outright, I would try to assert a plausible objection to avoid having to admit that the allegation was true.

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If a defendant does not simply deny the allegation, they might be hiding information from you.

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So when you review a defendant’s answer to a complaint, pay particular attention to the defendant’s objections. Generally, if a defendant can deny the allegation, they will do so. If they did not simply deny the allegation, they might be hiding information from you. Consider this exchange, for instance:

Allegation: The parties’ contract stated that the defendant would provide a licensed contractor to repair the plaintiff’s deck.

Objection: Objection, the contract speaks for itself.

In this example, the defense is trying to avoid admitting an important issue in the case—whether the defendant had certain obligations under the contract. The defense’s objection is evasive and impermissible.

Notably, the federal rules do not allow defendants to object to allegations in a complaint.⁴ The only available options under FRCP 8 are for the defendant to admit the allegation, deny it, or state that they lack sufficient information. If a defendant objects to an allegation in the complaint, consider challenging it by moving to strike the objection and have the allegation deemed as admitted. Alternatively, serve a request for admission identical to the allegation in question to force the defendant to admit the allegation.

Legal conclusions. Another common defense practice is to contend that a factual allegation asserts a legal conclusion, even though the allegation asserts facts. Here’s how that might look:

Allegation: At the time of the incident, Defendant ABC Corp. employed Defendant John Smith.

Objection: The allegations in this paragraph set out legal conclusions to which no response is required.

In this example, the allegation does not call for a legal conclusion. The defendant corporation is trying to avoid admitting that it employed the individual at the time of the incident.

If a defendant refuses to answer a factual allegation on the ground that it asserts a legal conclusion, review the allegation to determine whether the defendant is correct. If not, consider using the same tactics described earlier—move to strike the nonresponsive answer and have the allegation deemed as admitted or serve a request for admission identical to the allegation in question.

Structuring the complaint to prevent denials. If an allegation is partially true, the defendant must admit the part that is true and deny the rest.⁵ As a practical matter, some defendants do not do that—instead they respond to the allegation as a whole. If part of the allegation is correct, but the other part is not, they will simply deny the allegation, without specifying which portion is not correct.

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Asserting just one factual contention per allegation forces the defendant to admit which factual contentions are true and which are not.

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To prevent this from happening, avoid allegations that assert multiple facts. Asserting just one factual contention per allegation forces the defendant to admit which factual contentions are true and which are not. And it prevents defendants from issuing a blanket denial to the entire allegation. This is especially true if there are multiple defendants in a case or if you are trying to determine the relationship between defendants to establish vicarious liability.

Consider this example:

Allegation: Defendant John Smith was an agent and/or employee of Defendant ABC Corp. at the time of the incident.

Answer: Denied.

It is unclear whether John Smith was an agent or an employee. It would be better to allege that John Smith was an agent, and then separately, in the alternative, to allege that John Smith was an employee.

Here is another example involving a motor vehicle crash:

Allegation: Defendant’s vehicle crossed the center line of the roadway and crashed head-on into Plaintiff’s vehicle.

Answer: Denied.

It is unclear whether the defendant disputes that his vehicle crossed the center line of the roadway, that his vehicle collided with the plaintiff’s vehicle, or that it was a head-on collision. Separating this allegation into three separate paragraphs would remove ambiguity and force the defendant to take a position on each of the three facts asserted.

Here is a third example involving a product:

Allegation: Defendants manufactured and sold the lawnmower at issue.

Answer: Denied.

Here it is unclear which defendant manufactured and sold the lawnmower at issue. It would be clearer to separate the defendants and the factual allegations into separate numbered paragraphs. For example:

Allegation 1: Defendant 1 manufactured the lawnmower at issue.

Allegation 2: Defendant 1 sold the lawnmower at issue.

Allegation 3: In the alternative, Defendant 2 manufactured the lawnmower at issue.

Allegation 4: In the alternative, Defendant 2 sold the lawnmower at issue.

Lack of information. FRCP 8 allows defendants to state that they lack knowledge or information sufficient to form a belief about the truth of an allegation. However, some defendants abuse this rule and use it to avoid answering factual allegations in a complaint.

If a defendant responds that it lacks information to admit or deny the allegations in a complaint, I suggest waiting until some discovery has been conducted and then, if appropriate based on what you find out, serve a request for admission that is identical to the allegation at issue.

You can also challenge the defendant’s affirmative defenses. If the defendant does not have sufficient information to admit or deny the allegations in the complaint, how does that defendant know enough about the incident to assert affirmative defenses?

One other approach is to file a motion asking for leave to amend the complaint at some point after discovery has commenced. These motions are routinely granted because FRCP 15 directs courts to “freely give leave when justice so requires.” When the defendant files its responsive pleading to the amended complaint, it will be difficult for it to continue to assert that it lacks sufficient information to answer the allegations.

Directing factual allegations to all defendants. Another common defense strategy is to avoid responding to allegations on the ground that they are directed at another defendant. For example, consider a motor vehicle case in which a plaintiff alleges that the defendant driver caused a collision and that the defendant was employed by ABC Corp. at the time of the collision. In Count I of the complaint, the plaintiff alleges how the collision occurred and asserts a negligence claim against the defendant driver. In Count II, the plaintiff “repeats and realleges” the prior allegations and then alleges that defendant ABC Corp. is vicariously liable for the defendant driver’s negligence.

Here, ABC Corp. may not answer any of the factual allegations in Count I on the ground that Count I is not directed to it. Then, when it responds to Count II, it may say that it “incorporates its prior responses as if set forth herein,” and then deny the vicarious liability allegations.

In this example, the plaintiff does not know whether the defendant corporation agrees with or disputes how the collision happened. A better option is for plaintiff counsel to set forth how the collision happened in a general section of the complaint that is directed to all defendants. This strategy can force the defendant corporation to respond to the factual allegations.

Discovery

Some defendants obstruct discovery by causing delays, making it difficult for you to get the information you need to develop your client’s case. They also may withhold information and documents that should be produced in the litigation. To prevent this from happening, it’s important to challenge insufficient discovery responses—and to file motions seeking judicial intervention.

Discovering defenses. I recommend serving an interrogatory that asks defendants to set forth the basis of all affirmative defenses they assert in the case. If a defendant denied any of the allegations in the complaint, consider serving an interrogatory that asks it to identify all evidence on which it based its denial. FRCP 11 requires the defendant to have a good faith basis when answering pleadings.⁶ Therefore, if the defendant objects to providing an answer, consider filing a motion to compel.

Another strategy is to serve interrogatories that ask why a defendant did (or did not do) something. This is a powerful tool that makes defendants uncomfortable and forces them to explain their actions. If they refuse to answer the interrogatory, file a motion to compel. For instance, in a premises liability case, you could ask the following:

Interrogatory: Was a sign posted near the pool area to warn invitees that the floor was slippery?

Interrogatory: If yes, please identify what the sign said, describe the sign and where it was located, and identify who posted the sign and when. If there was no sign posted by the pool, why not?

Access to witnesses. When identifying witnesses and individuals with knowledge, some defense attorneys try to prevent plaintiff attorneys from contacting witnesses directly—they may fail to provide the individual’s contact information or will direct plaintiff counsel to contact the witness “through defense counsel.” Sometimes, this is improper.⁷

To prevent defense counsel from obstructing access to witnesses, it can be helpful to include the following language in your interrogatory: “If counsel for the defense does not provide the individual’s contact information or directs plaintiff counsel to contact the individual through counsel for the defense, state the reason why you are not providing the individual’s contact information and the basis of your contention that plaintiff counsel is not permitted to contact the individual directly.”

Defense attorneys may obstruct access to fact witnesses by claiming that they represent the witness at a deposition. However, in some instances they are just trying to assert control over the witness and prevent you from discovering what the witness knows and how the defense lawyer prepared the witness for the deposition. If a defense lawyer claims to represent a nonparty fact witness or a low-level employee, consider whether the defense lawyer is doing this improperly. Ask questions about the attorney-client relationship during deposition, such as:

• When did you learn about this litigation? How did you learn about it?
• When did you first learn that you were going to testify? How did you learn that?
• Did you contact corporate counsel to represent you, or did they contact you? When?
• Did you sign a contract with defense counsel? When?
• Are you paying defense counsel? Who is?
• Did you meet with defense counsel before this deposition? How many times? When? For how long? Who was there?

Document requests. Defendants often object to document requests. Although FRCP 34 requires defendants to state whether they are withholding documents subject to their objections, many of them do not comply with this rule. If a defendant objects to a document request but does not state whether it is withholding documents or identify what the documents are, send a good faith meet-and-confer letter that reminds them of their obligation under FRCP 34. If they do not respond, promptly file a motion to compel.

Privilege. FRCP 26 requires parties that assert privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged and protected, will enable other parties to assess the claim.”⁸ So if a defendant asserts privilege but does not describe the documents that it is withholding subject to the privilege, promptly remind them of this obligation. If they do not comply, file a motion to compel.

In addition, consider serving an interrogatory that asks the defendant to identify the date that it reasonably anticipated litigation. If the defendant claims that a document is shielded from disclosure because it is work product but the document at issue was created before that date, it is unlikely that the defendant’s work product claim will be successful.

Supplementation. Parties must supplement their answers to discovery if they learn that their prior answer was incomplete or incorrect.⁹ It is important to remember the duty to supplement does not apply just to discovery responses. It also applies to initial disclosures under FRCP 26(a).

Some defense counsel do not supplement, so encourage them to do so. I recommend sending periodic reminders to defense counsel in writing, by letter or email, asking them to supplement their prior responses. If defense counsel inadvertently forgot to supplement, sending them a reminder is helpful and can avoid you being surprised by documents and information at the last minute.

In addition, if defense counsel is being obstructive and then identifies evidence or documents at the last minute that should have been produced earlier, sending periodic reminders throughout the case could support a motion to strike the evidence. Your letters and emails can prove to the court that despite being reminded of their obligation to supplement their responses, the defendant was obstructive.

Act promptly. One of the most common and effective defense tactics is delay. Defendants may delay providing meaningful responses to discovery requests, scheduling depositions, and scheduling hearings because they know that if they delay long enough, it will be difficult for plaintiffs to have the time that they need to develop their case.

FRCP 26 allows a party to avoid responding to discovery if it can establish that the party seeking the discovery has had ample time to obtain the information.¹⁰ Therefore, if a defendant is being obstructive, it is important to act promptly. Document in writing your good faith attempts to meet and confer with opposing counsel, and give defendants a deadline to respond. If the defendant does not respond by the deadline or if it responds but no meaningful progress is being made, promptly file a motion with the court.

If defense counsel refuses to provide dates for depositions or hearings, issue the deposition or hearing notice and agree to withdraw the notice only after the parties have agreed to an alternative date. Filing a motion with the court is beneficial because the court can order a noncompliant defendant to correct its obstructive behavior. In addition, filing a motion can be effective when defendants are not cooperating with their own counsel, because it empowers defense lawyers to put pressure on their clients.

Confronting obstructive defendants can be exhausting, but failing to do so can have a drastic effect on your client’s case. Structure your pleadings and discovery requests so that if the defendant is obstructive, it will be obvious to the court. And if the defendant continues to be obstructive, promptly challenge their actions and file motions to compel the defendant to cooperate or motions for sanctions if necessary.

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Ashley T. Davis is an attorney at Allen & Allen in Richmond, Va., and can be reached at ashley.davis@allenandallen.com.

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Notes

1. Model Rules of Pro. Conduct, Preamble (Am. Bar Ass’n 2023).
2. Fed. R. Civ. P. 8(b)(1)(B).
3. Fed. R. Civ. P. 11(b)(4).
4. See Fed. R. Civ. P. 8. However, there are some exceptions to this general rule. For example, a defendant who has been accused of criminal wrongdoing is permitted to assert their Fifth Amendment right against self-incrimination. However, in most instances, the defendant’s objections to the allegations in the complaint are likely improper.
5. Fed. R. Civ. P. 8(b)(4).
6. Fed. R. Civ. P. 11.
7. For example, in Virginia, it is an ethical violation to obstruct another party’s access to evidence. See Va. Sup. Ct. R. pt. 6, sec. II, 3.4.
8. See Fed. R. Civ. P. 26(b)(5).
9. Fed. R. Civ. P. 26(e).
10. Fed. R. Civ. P. 26(b)(2)(C)(ii) (“On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”); see also Fed. R. Civ. P. 34(b)(1)(B) (“The request . . . must specify a reasonable time, place, and manner for the inspection and for performing the related acts.”).