Grosser v. Korsmo and First Transit, Inc., No. 17-2-06113-1 (King County Sup. Ct. 2017), arose from a bus versus pedestrian accident. The elderly plaintiff sued the bus driver and the bus driver’s employer for personal injury. At the accident scene, the bus driver collected eyewitnesses’ names and contact information on forms that his employer had provided him.

Plaintiff issued written discovery requests to defendants on a number of topics, including the identification of eyewitnesses. It appears that defense counsel had difficulty getting their clients to respond to requests for assistance in answering the interrogatories and producing responsive documents. The retirement of the employer’s safety manager did not help matters.

Defense counsel ultimately signed the defendant employer’s discovery answers as both counsel and the employer’s representative, i.e., “regional counsel.” Indeed, the signature block for the employer’s representative included a declaration that the answers were being signed “under penalty of perjury.”

The bus driver’s discovery answers were submitted without the driver’s signature. Later, when the bus driver was deposed, he testified that he did not recall ever providing information to assist in answering written discovery.

Defendants did not disclose the names of the eyewitnesses until much later, just four months before trial. And three of the four eyewitnesses gave accounts of the accident that favored plaintiff.

Plaintiff then filed a motion for discovery sanctions, asking the trial court to strike defendants’ answer and enter default against them. Plaintiff also asked the court to disqualify defense counsel, arguing that he had made himself a witness by signing the discovery answers as the employer’s representative and pointing out that the Rules of Professional Conduct prohibited him from serving as both an advocate and a witness. See RPC 3.7 (providing that “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness[,]” with few, limited exceptions).

In their opposition, defendants argued that the court should refuse to consider plaintiff’s motion because plaintiff counsel had not conducted the necessary discovery conference before filing the motion. Defendants argued also that the court should strike plaintiff counsel’s declaration, claiming that he lacked personal knowledge to support certain statements he made therein.

The trial court ruled in plaintiff’s favor, finding that plaintiff counsel had conducted the necessary discovery conference. The court ruled also that defendants and their counsel had violated the discovery process by failing to timely and properly disclose the identity of critical eyewitnesses and that the violation had substantially prejudiced plaintiff. In the order granting plaintiff’s motion, the court wrote that she was “very concerned” that defense counsel personally answered the written discovery and excessively objected to every question regarding eyewitnesses when defendants knew that such witnesses existed.

The court declined to strike defendants’ answer and enter default against them. Instead, the court ordered defendants to provide full and complete discovery answers within ten days and awarded plaintiff her fees and costs for time spent on the discovery motion, written discovery, and depositions. The court also disqualified defense counsel who had signed the discovery answers as both counsel and the employer’s representative.

The case settled on the eve of trial. One of the settlement terms included that the parties would file a joint motion, asking the trial court to vacate the order on plaintiff’s motion for discovery sanctions. The trial court granted that request.

Takeaway

Never, ever make the senseless mistake of signing discovery answers as both counsel and the client’s representative. And never get accused of withholding the names of eyewitnesses.

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