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I inform clients one of the most expensive aspects of litigation is not necessarily court time, but going through the discovery process in the case. There are three basic actions by counsel that may constitute abuse of the discovery process:

1) The “boxcar” request typically is used as an intimidation tactic. If this request is complied with, it would require a boxcar to deliver the responsive documents. This type of request is typically used to intimidate and discourage the other side from pursuing the litigation and perhaps to take advantage of superior resources of the requesting party.


2) A “shuffled deck” response to a request for production is when the documents produced  are in such a format which resembles a deck of cards that has been shuffled. In other words, the documents have been reorganized, and all original structure or format has been removed.

3) In a “smoking gun” response, a responding party attempts to hide an incriminating or particularly damaging documents in a “boxcar” load of documents and makes the gratuitous offer to permit the requesting party to review all those documents, hoping to intimidate the party into giving up.

In these three scenarios, the appropriate response may be a motion to strike the “boxcar” request, or to compel the party to produce the documents as they would otherwise be kept in the usual course of business.

Again, most of what the big money is paid in legal fees is not for the melodrama in court … but what goes on behind closed office doors sifting through bankers boxes of documents.

Charles Jones, Esquire