Clearly, many lawyers feel judges need to better understand how discovery abuses affect their cases and clients. And when abuses arise, they want judges to take firm action. Judges point out they can act only if discovery abuses are brought to their attention, as they aren't present to witness abuses in person. Most judges make themselves available to handle disputes that arise during discovery, says Bayfield County Circuit Court Judge Thomas Gallagher. If they happen to catch me when I'm off the bench, that's fine.
Judges also can have impact at the discovery motion stage.
And we can clamp down in handling those motions to try to eliminate the problems. You just hope some of it shows up in the deposition or in court so that something can be done about it. The court of appeals in District II did do something about discovery abuses in Geneva National Community Ass'n and Geneva National Condominium Master Ass'n v. Michael E. Friedman and Christine J. Friedman in June 1999. The defending attorney repeatedly had defied the court's orders to comply with discovery. So indirectly, even without enforcement mechanisms, we in the courts are finding instances where the rules of civility come into play in deciding a case on its merits.