Standard 19
by Donald J. Winder and Lance F. Sorenson
“In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.”
Two boys go into a bakery looking for something to eat. When the baker is not looking, one boy steals a muffin and hands it to his companion, who hides it in his coat. The baker, upon learning the muffin is missing, asks the boy who is hiding it, “Did you take a muffin from the shelf?” The boy answers, “No, I did not.” The baker then asks his companion, “Do you have the muffin?” The second boy answers, “No, I do not.”
Both boys’ answers to the baker’s inquiries were technically true. Yet both boys acted unethically and immorally not only by stealing the muffin, but also by interpreting the baker’s questions in such an artificial and restrictive manner that their responses hid the truth of what happened.
A lawyer may feel justified in withholding relevant and non-privileged information from an opponent where the request or question can technically be interpreted in a manner so as to render the information outside the scope of the request. The lawyer may even assert proudly that by withholding the information, he forces his opponent to be more careful in crafting document requests and interrogatories. So, too, the boys who stole the muffin might blame the baker for not asking the right question. However, the lawyer who “creates confusion” through artificial discovery responses is no less deceptive than the boys in the bakery. He obscures relevant information and may even hide its existence altogether. Such actions implicate not only the lawyer’s duty to act with civility toward his opponent, but also his ethical duties as a member of the bar. See Rule of Professional Conduct 3.4(a).
Additionally, a lawyer may try to hide discoverable information from his opponent by playing “52-card shuffle,” whereby he shuffles documents between the file maintained by the firm and the file maintained by the client in hopes of rendering certain documents outside the scope of the discovery request. Again, such actions may cause the non-production to comply technically with the request, but such artificial interpretation of a discovery request is unethical and contributes to the perception that members of the legal profession seek to evade honest and direct answers by finding legal loopholes.
Although a lawyer is already compelled to disclose relevant and non-privileged information during discovery by Utah Rule of Civil Procedure 26(b)(1), Standard 19 reinforces the notion that the purposes of discovery rules are to make discovery as simple and efficient as possible by eliminating any unnecessary technicalities, and “to remove elements of surprise or trickery so that the parties and the court can determine the facts and resolve the issues as directly, fairly and expeditiously as possible.” Ellis v. Gilbert, 429 P.2d 39, 40 (Utah 1967). By following the counsel of Standard 19, a lawyer helps achieve an expeditious resolution of the issue at hand and helps maintain the integrity of the profession.