Discovery Requests Often Are Overly Broad, Can Be Abused
Discovery requests from plaintiffs’ attorneys can be overly broad in an attempt to obtain records the defendant does not have to provide, says Matthew Carter, JD, an attorney who handled hospital litigation in a previous role with a large law firm.
However, the bar is high when making that claim to the court. The defense can object to what it considers an overly broad discovery request, but the objection often is unsuccessful because the scope of discovery is quite broad.
“Lawyers like to complain that if a request isn’t relevant to the claims, it can’t be made. This is almost never true. Discoverability is a far broader standard than relevance,” Carter explains. “I am absolutely allowed to make an irrelevant request if there is a good chance that the answer will give me a relevant, admissible answer, or evidence that leads me to that answer.”
But remember the same broad scope of discovery is available to the defendant, too. Carter offers an example in which a plaintiff is suing a hospital for malpractice, alleging she contracted a staph infection during a hospital stay. The hospital’s lawyers almost certainly could subpoena all her medical records for the past 10 years.
“Even though most of those wouldn’t be relevant in a lawsuit about a staph infection, they might have a note somewhere saying that the patient has had chronic and repeated staph infections for years before she ever came to the hospital,” Carter explains. “That would be very relevant.”
Of course, there are limits. “When you start asking for general medical records over 10 years old, judges will start putting the brakes on the discovery as too intrusive,” Carter says. “Though if a lawyer has a really good reason for the request, a judge can be persuaded to let it through.”
Also keep in mind that in many courts, simply objecting to a subpoena will halt its enforcement, Carter notes. Then, the attorney who issued the subpoena either will have to negotiate a solution the producing party can live with, or bring a motion to enforce the subpoena in court.
Be Specific with Requests
The biggest discoverability issue with medical records is casting too wide a net for too long, Carter says. Generally, the more specific a request, the farther back the law will let you subpoena records. Less specific requests will be more restricted in the records you can obtain. Also, the type of lawsuit will determine the bounds of specific requests.
“In a staph infection case, for example, you probably aren’t entitled to get the claimant’s psychiatric records. Even though that is a very specific request, it has little to do with the claim,” he explains. “A judge would need to see strong support to let that request be answered.”
Risk managers and counsel must scrutinize requests carefully because the other side can be counted on to make overbroad requests to obtain information they are not entitled to, Carter says. Most lawyers would not think of it as getting the information they are not entitled to, instead thinking the rules allow them to get everything and whittle down to the useful information from there.
“In a lot of lawsuits, that may be the case,” Carter notes. “However, the law is very protective of medical information, and the courts and judges understand that.”
Overbroad discovery requests occur often. Most attorneys do not think they make such requests, but the nature of litigation is to push as far as possible to get as much as possible, Carter says, so there will always be some attempt to overreach. For the most part, this is not done in bad faith, and the parties will sort it out, either among themselves or with the help of a judge.
Discovery Abuse Is Possible
Discovery abuse is less common but does happen. It seems to be more prevalent with bigger corporate law firms than smaller firms or individual lawyers, Carter says. Discovery abuse is more than just making overbroad requests. Most lawyers and judges would define discovery abuse as using the mechanisms of discovery to harass or burden a litigant or increase the expense to them.
“You have probably seen movie and TV show lawyers threaten to ‘bury each other’ in paper. That is really what discovery abuse is. Some lawyers will issue document requests, subpoenas, or interrogatories with hundreds of parts that may include hundreds of thousands of documents,” Carter says. “These requests will often be vague and overbroad, but they are really designed to make the other side do as much work as possible. They also want the other side to spend money on attorney fees, document review, and other costs.”
In the staph infection example, Carter says perhaps an overzealous plaintiff’s attorney holds a heated discussion with the hospital’s attorney about a recent court hearing where the hospital won a discovery motion. A few days later, the plaintiff’s attorney sends the hospital a discovery request for documents and contact information on every patient and guest who entered the claimant’s hospital room for the past five years.
“The hospital may well have visitor logs and other documents that could reflect some or all of this information, but the purpose of the discovery was really to just make life difficult for the hospital and its lawyers,” Carter explains. “In a case like this, the hospital could probably go to court and get the subpoena quashed. If the plaintiff’s attorney’s behavior was bad enough, the court may also award sanctions, such as making the plaintiff pay the hospital’s attorney fees.”
If you find discovery abuse, Carter advises asking your attorney to write a detailed letter explaining the problems with the discovery. The laws of many states also require a good faith phone conversation between lawyers to try and fix the problem.
After receiving the letter, the other side should modify its requests, Carter says. If they do not, depending on your state, you might have to file a motion to quash the subpoena and for sanctions.
“In my experience, courts are hesitant to award monetary sanctions, but will often strike down or modify unreasonable document requests,” Carter says.Discovery requests from plaintiffs’ attorneys can be overly broad in an attempt to obtain records the defendant does not have to provide. However, the bar is high when making that claim to the court. The defense can object to what it considers an overly broad discovery request, but the objection often is unsuccessful because the scope of discovery is quite broad.
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