We recently attended on an unnecessary motion in respect of documentary production. Of course, any attendance drives up costs and is contrary to the client interests if another resolution is available; where a motion is brought or heard unnecessarily, however, the moving party may be responsible not only for their own lawyer’s time, but for those of opposing counsel.
The present case involved a plaintiff’s motion for production against two defendants. The motion was brought 3 weeks after the only in-writing demand for production made following the plaintiff’s service of their Affidavit of Documents. The motion was served 21 December, just prior to the holidays, and returnable Monday January 4th.
The intervening holiday meant that, in at least one case, the client office was already on shutdown; in our own case, there were only 2 business days in which our office was open between service and attendance. Nonetheless, we were able to complete our client’s productions, while our co-defendant offered their undertaking to have their client’s sworn affidavit of documents and Schedule A productions served by the end of January.
In spite of this apparent resolution, plaintiff’s counsel insisted on bringing their motion: as against our co-defendant, for an order for production within two weeks rather than a month; in our own case, simply for an order for costs thrown away bringing the motion, as we had already complied with the sought relief by serving our client’s sworn affidavit!
Costs are in many ways a blunt instrument, but sometimes a most appropriate one. In the result, the motion against our client was dismissed with costs forthwith, and against our co-defendant resolved on the terms to which they had sought consent, also with costs forthwith.
The service of the motion achieved the plaintiff’s objective: to obtain rapid and enforceable production of documents. Attendance on the motion was completely unnecessary, and wound up costing that plaintiff much more than they had bargained for.
Counsel take note: courtesy is not just a matter of professional conduct: it’s a matter of client service!