Mindless Pedantry

First, yes, “Mindless Pedantry” would make a good band name.  Other than that though, it is never a good thing.

In the practice of law, attention to detail is a valuable quality, but mindless pedantry certainly is not.

You are probably not an experienced litigator if you cannot remember a time when, faced with responding to a difficult discovery item, you haven’t been thrilled to notice some problem with wording, grammar, punctuation, or other technical deficiency in language usage in the question or request propounded to your client that you could use to your advantage.  We’ve all been there, and, to some extent the measure of our professionalism, is how you have dealt with the situation.

If the flaw is in a request for admission, you are likely simply obligated to deny the request based on the wording problems.  If it is an interrogatory or a request for production of documents, then you’ve likely done your best to point out the wording issue but not solely stood on that shaky ground alone.  You’ve likely either also provided a response that assumes the questioner intended to say “x” or, if you really needed the extra time to figure out the correct answer (and to figure out just how damaging the correct answer might be to your client’s case) then you still likely at least volunteered that if the questioner meant “x” and would confirm it, that you’d be happy to provide a supplemental response answering “x.”

What you hopefully have not engaged in is the mindless pedantry for which a firm was taken to task earlier this month by the Trademark Trial and Appeal Board when that body excoriated counsel for using an “obvious” typo as “an excuse to become pedantic, unreasonable, and uncooperative.”  The underlying litigation involves a trademark dispute that has been ongoing for several years now in which Cadbury seeks to cancel a U.S. trademark that has been registered for the name “Bournvita,” because Cadbury still has a brand of chocolate drink – though only big in India, Nigeria, and parts of the developing world — using that name.

In a set of requests for production of documents that (for reasons enumerated below) were otherwise quite obviously propounded upon Cadbury, the attorneys for the party with the U.S. trademark – Meenaxi Enterprise, Inc. — put the wrong name in some prefatory language saying these requests were being served on Venture Execution Partners (a third-party having no role in or bearing upon the dispute).  Cadbury ultimately took the position in response to a motion to compel that, because of this typographical error [presumably caused by the lawyers cutting and pasting from a similar document filed in some other matter against the Venture Execution outfit], the discovery requests were not actually directed to Cadbury and, thus, Cadbury had no legal obligation to respond at all.

That approach did not go well.

In the end, Cadbury’s lawyers were chastised pretty sternly and essentially lost the right to make any substantive objections to the discovery requests to which they have now been compelled to respond that they might otherwise have been able to raise.  The level of pedantry involved can be grasped (and marveled at), with a few surrounding facts described in the ruling:

• The requests were served (by hand delivery on counsel for Cadbury) at the same time and in the same package as interrogatories directed to Cadbury that didn’t suffer from the typo, and to which Cadbury filed timely objections.
• The requests incorporated certain “definitions” set forth in the interrogatories, where “Petitioner” was defined to be Cadbury.
• The requests were otherwise properly captioned in the case being litigated, including the required reference to the correct registration number of the trademark at issue.

As if that all weren’t bad enough, Cadbury’s counsel really, really did not help themselves out by the fact that before providing their response/objections to the interrogatories, they had asked for, and received, four extension of time to respond “discovery.”  In none of those exchanges did counsel indicate they were seeking the extension only for the interrogatories or otherwise mention that they did not believe there were requests directed to them that required a response.

Although the case makes no mention of this point, it is worth taking the opportunity to remind folks that in Tennessee, for example, our RPC 3.4(d) makes it unethical for a lawyer not only to “make a frivolous discovery request,” but also to “fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

You can read the full decision here.