Plaintiff’s Last Dance: A Motion to Compel

In July, 2019 I published a series of posts examining various issues that arose in a case I handled.  For this July, I decided to publish another series, this time about the ethics of discovery and settlement.[1]



Plaintiff didn’t respond to written discovery…

This story starts with an unremarkable slip and fall personal injury complaint that was removed to federal court. On August 4 I served interrogatories, followed by requests for production on August 17.  The deadline to respond came and went, but no responses were received. There were no requests to extend the deadline.  By October 5, I wrote to the primary lawyer handling the case, who I’ll call Partner 1.[2]  I asked for the status of the responses and that they be provided no later than October 12.

Partner 1 responded on October 6, posing questions about potential settlement.  My client was willing to discuss settlement but I reiterated on October 9 that it still needed discovery responses by October 12.  Plaintiff’s interrogatory responses arrived on October 17.  They were unverified.  Plaintiff’s responses to requests for production were received via fax transmission on October 24.  They were incomplete.  Among other things, they did not provide medical record authorizations.

On October 30 I emailed Partner 1 noting these deficiencies and requested that they be resolved immediately.  I received no response.  I wrote again on October 31, but received no response.  I called three times on November 3 to discuss them.  The first call was at 11:24 a.m.  I was advised Partner 1 was unavailable and was offered the paralegal who was handling the file.  I was then told Paralegal was on another call.  I held the line for approximately 5 minutes and was then asked to leave a message, which I did.  The second call was at 1:30 p.m.  I was told Paralegal was at lunch.  At approximately 4:30 I placed the third call and was informed Paralegal had left for the day.  So I filed a motion to compel on November 6 and also asked to extend discovery because we could not meet expert disclosure deadlines without Plaintiff’s discovery responses.



…because he was dead.

On November 20, Partner 1 emailed me and attempted to accept a settlement offer that had been made on October 27.  I responded by noting the offer had expired.  I also asked counsel if his client was still alive.  This is not a usual question I ask during settlement negotiations, but a paralegal working with me found an online obituary indicated Plaintiff died on May 19.  The obituary did not contain sufficient information for us to conclusively state Plaintiff was the person discussed, but there were enough similarities for us to be suspicious. 

Partner 1 responded to my question by arguing there was a valid offer and acceptance, creating a binding settlement agreement.  He argued if my client was “unwilling to pay the settlement offer that it offered, we will be forced to file a motion to enforce settlement.  Also, we responded to written discovery on October 17….”  Partner 1 didn’t answer my question about whether Plaintiff was still alive, so I sent a one sentence reply.  “[Partner 1], Is your client alive?”

I received no response until December 11, after the court scheduled a hearing on the motion to compel for December 14.  Paralegal emailed me and wrote “[Partner 1] would like to schedule a telephone conference with you regarding a few topics: the settlement, [Plaintiff’s] death, and Defendant’s Motion to Compel.  Do you have time tomorrow to speak with [Partner 1] around 2:00 p.m.?”  I agreed and during the call Partner 1 confirmed for the first time that Plaintiff had died.  After the call, I filed a suggestion of death and prepared for the hearing that would occur two days later on the motion to compel.


[1] Tom Petty inspired the title.

[2] I really, really, really want to publicly shame this lawyer, but I have repeatedly stated that is not why this blog exists.  So I have removed the names of the guilty.