George Bellows, Dempsey v. Firpo, 1924
Update (August 16, 2018): Predictably, plaintiff’s counsel in the case described below want to keep the defense lawyers in the ring, or at least to avoid any delay caused by the lawyers’ attempt to thrown in the towel.
Update (August 10, 2018): Things have gone from bad to worse for Defendants, Geckobyte and R. Tiegen Fryberger, in the case described below.
Now their lawyers are seeking permission to withdraw from representing them. Will the lawyers get permission? Time will tell. As devout Minnesota Litigator readers know but others may be surprised to learn, although it is easy to ask for permission to withdraw from representation of a client, it is not so easy to get permission, at least in federal court in Minnesota (see here and here).
We lament this situation (involuntary representation) and we hope that Geckobyte and Fryberger’s lawyers are not collateral damage in this bloodbath, even if they were responsible for the rope-a-dope defensive strategy which seems to have failed.
Update (June 26, 2018): We saw this one coming. (Plaintiffs win on their motion for summary judgment, defendants lose on theirs).
Update (May 16, 2018): From the looks of it, Defendants Geckobyte.com, Inc., and R. Tiegen Fryberger did not enter the ring to win the match in their lawsuit in the U.S. District Court (D. Minn.). They were dragged into the ring. They do not appear to want to fight very much, if at all. On the other hand, they are obviously unwilling to forfeit the match.
As discussed in the original post (below), the Riddle et al. v. Geckobyte, et al., lawsuit is a common scenario in U.S. civil litigation involving small businesses: one business buys another and either they buyer protests that the purchased assets were not “as advertised” or the seller protests that buyer’s payment(s) were not made as promised (and often both). (These problems seem particularly common when the seller is to work for the buyer’s business and seller’s payout is based in significant part on post-sale business performance.)
In this case, Plaintiff is the seller, seeking to be paid for the business he sold to Defendant. Defendant’s defense seems to have been a variant of rope-a-dope, in which a fighter seems to take the opponent’s punches to tire him out, then slips out of passivity when his opponent is exhausted, to pummel the tuckered-out fighter. (See arguments on plaintiff’s summary judgment motion on defendant’s counterclaims here, here, and here).
Rope-a-dope, as the linked article points out, was a dubious and flawed strategy in real boxing. It seems worse in the context of civil litigation.
Original post (February 28, 2018) (under the headline: “On the Art of Requests for Admission (and on the Art of Answering Them”): As all U.S. civil litigators know, our discovery tools — that is, the means of fact investigation in civil litigation — are basically interrogatories, document requests, depositions, and requests for admission.
Of these, the most useful ones are probably document requests and depositions. The other two tools may be extremely useful in particular cases but they may also be more vulnerable to obstruction, evasion, or even deceit.
In fact, the problems with interrogatories and requests for admission can be on both sides — by the interrogators and by the interrogated.
For example, as we discussed here, it is a kind of subterfuge or at least unproductive game-playing to pose a request to admit like this: “Admit that you are going to lose this lawsuit” (and then seeking attorneys’ fees for the “improper denial” when the answerer eventually loses the lawsuit).
Similarly, some interrogatories are posed in such an argumentative fashion as to make them unfair and difficult, if not impossible, to answer (e.g., “Identify all members of your unlawful conspiracy…”).
In requests to admit, we sometimes encounter the cliché double-bind — “Admit that you have stopped beating your spouse…” — that is, the kind of request for which neither an admission nor a denial is appropriate.
Requests for admission can be quite effective if carefully drafted and if honestly answered. But one or both of these prerequisites are frequently absent.
Take Riddle v. Geckobyte.com, for example.
Plaintiff served discovery on Defendant including requests for admission: “[Admit that] Defendant Geckobyte took no action in response to Plaintiff sending [a demand for payment in writing].”
Defendant answered, “Denied to the extent that ‘took no action’ is not defined, and on the basis that such claims are beyond the applicable statute of limitations period.”
In our view, the request was not well-written because, as the Defendant pointed out, “took no action” is ambiguous. The request also seems problematic because Plaintiff already knows the answer to the answer. (As far as Plaintiff is concerned, Defendant took no action in response to Plaintiff’s demand.) And there is no clear value to the admission (if anyone would ever admit such a vague assertion).
On the other hand, Defendant’s response was not good either. What stopped the Defendant from giving its own definition of “taking action” since the Plaintiff did not provide one? What stopped the Defendant from simply answering, “Denied”?
From the rest of Plaintiff’s memorandum of law in support of his motion to compel, Defendant is not putting much thought, effort, or, perhaps, any good faith in his discovery responses generally. His apparent stone-walling may end badly for him. But, along the way, at least the rest of us might pick up a pointer or two on how not to conduct discovery.