Filing a motion for protective order on collateral sources

  Photo:  Two broken statues in a museum in Olympia Greece.  They could have used a protective order.

Photo:  Two broken statues in a museum in Olympia Greece.  They could have used a protective order.

Defense attorneys go to legal seminars too.    One technique they have been learning is how to take advantage of liberal discovery rules.  Increasingly we find them invading where they have no business being.

We can passively let them dig unnecessary holes in our clients' lives.  Or we can push back when they cross lines.

Here is the sequence of what happens:

  1. Defense issues obnoxious discovery request seeking something that is none of their business.
  2. Plaintiff lawyer (hopefully) says - we are not going to answer that.
  3. Defense lawyer calls for a discovery conference as a prelude to bringing a motion.
  4. Defense lawyer files a motion to compel.
  5. Plaintiff lawyer responds.
  6. Defense files reply brief.
  7. Court rules on the motion

One  of the best strategies of how to engage in litigation warfare as a plaintiff attorney is this:  prosecute the case.  This means do everything you can not to be on the defensive.  The sequence above shows the plaintiff defending the discovery issue.  This can be switched around.  File a motion for protective order instead of waiting for the defense to file a motion to compel.  By being proactive, plaintiff gets to frame the issue for the court.  And better yet - gets to file a reply brief.  There's some joy (not to mention technical advantage) in being able to have the last word.

Attached is a motion for protective order filed in an underinsured motorist lawsuit where the car insurer tried to get the disability insurance files of the plaintiff.  Mtn for Protective Ordersample.