Published in The Construction Lawyer Volume 44, Number 1, ©2025 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Forum on Construction Law The Construction Lawyer Winter 2025
10
Trolling, Stonewalling, and Sham Pleadings: How Far
Is Too Far?—Handling Opposing Counsel’s Discovery
Phase Ethics Violations
By Kimberly A. Hurtado
Kimberly A. Hurtado is the founder of Hurtado Zimmerman SC, of Milwaukee, Wisconsin; a Fellow
and Board of Governors Member of the American College of Construction Lawyers; a Charter Fellow
of the Construction Lawyers Society of America; and has served on the Forum on Construction Law’s
Governing Committee. She is recognized as a Thought Leader by Lexology in the field of Construction
Law. She wishes to acknowledge Jessica Houghton, Hurtado Zimmerman SC, for her significant research
assistance in preparation of this paper.
Introduction
When an opposing counsel violates discovery phase ethics obligations, it can severely impact resolution
of a case. This wrongful conduct can be particularly vexing in construction disputes, where discovery
of project records often plays a key role in resolution. While it can be tempting to descend to opposing
counsel’s level to address their misconduct, it does little to truly resolve opposing counsel’s wrongful
manipulation and can result in placing your rm and you in jeopardy of ethics sanctions right along with
your opposing counsel.
This article explores ethical options that are available to address three specific discovery phase litigation
problems: trolling pleadings, discovery stonewalling, and sham disclosures, all of which can unreasonably
increase the cost and complexity of litigation if not handled deftly. It will review ABA Model Rules
of Ethics obligations related to these issues and examine how to use applicable Federal Rules of Civil
Procedure, scheduling orders, discovery, and sanction motions to deter these unethical pretrial practices.1
I. Trolling Pleadings
Out of the blue, your long-time construction client calls to advise they are being sued in a state where they
rarely or never do business, having been served with pleadings making vague allegations that they have
violated a federal law that has little to do with the construction services they provide. The pleadings,
which sound canned, contain few specic facts about your client’s alleged wrongful activities, but they
command your full attention when you see a demand for statutory treble damages plus attorney fees.
A quick search at the state (or national) level reveals this ubiquitous plaintiff and a less-than-fully ethical
law firm have asserted dozens, if not hundreds, of similar claims like those alleged against your client.
Each seeks to recover a modest amount of damages from a defendant incentivized to settle to escape a far
more costly and burdensome process of extricating themselves on the merits of the claim.
This practice of using boilerplate pleadings to target defendants, seeking to compel a swift settlement
to avoid costly litigation, is known as trolling. A strategy first employed in the 1990s in intellectual
property litigation,2 trolling has been used by creative, conniving lawyers in a wide range of legal contexts.
Typically, these attorneys work to secure numerous small settlements, thereby generating a significant
Published in The Construction Lawyer Volume 44, Number 1, ©2025 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Forum on Construction Law The Construction Lawyer Winter 2025
11
revenue stream for the plaintiff and them. Often, they involve state or federal statutes that include
judgment multipliers and award of attorney fees to successful parties, like the sanctions authorized by the
Americans with Disabilities Act for failing to provide persons having disabilities with comparable access
to commercial websites.3 These unscrupulous firms develop boilerplate pleadings and then go in search of
defendants, typically seeking just enough in damages that the claim cannot be ignored, but not so much
that defense in an inconvenient jurisdiction is remotely cost-effective. Also known as “drive-by lawsuits,”
the options for resolution are limited: caving in to the claim or moving forward with costly litigation,
though the trolling law firm is rarely truly interested in litigating the claim substantively. Instead, the
trolling firms use the pleadings as a threat, followed typically with an early settlement offer at a price that
is significantly less than trying the case.
A. The ABA Model Rules of Ethics Relevant to Trolling Pleadings
Trolling is not expressly mentioned in or outright barred by the ABA Model Rules of Ethics (hereafter ABA
Model Rules).4 There are, however, several ABA Model Rules supporting ethical defenses against trolling
litigation.
First, at the core of all pleading obligations is an ethical duty to assert claims that have substantive merit.
ABA Model Rule 3.1, Meritorious Claims & Contentions, provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there
is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for
an extension, modication or reversal of existing law.5
Note (1) to this ABA Model Rule further requires:
The advocate has a duty to use legal procedure for the fullest benet of the client’s cause, but also a
duty not to abuse legal procedure.6
Some state ethics codes have their own variations of the ABA Model Rules that provide additional support
for arguments seeking to dismiss abusive trolling. For example, Wisconsin’s Supreme Court Rule 20:3.1(3)
expressly provides that “claims, defenses and other actions on behalf of the client cannot be taken merely
to harass or maliciously injure another.”7
New York’s code analog to ABA Model Rule 3.1 further
defines conduct that is non-meritorious:
(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:
(1) the lawyer knowingly advances a claim or defense that is unwarranted under existing law,
except that the lawyer may advance such claim or defense if it can be supported by good
faith argument for an extension, modication, or reversal of existing law;
(2) the conduct has no reasonable purpose other than to delay or prolong the resolution of liti
gation, in violation of Rule 3.2, or serves merely to harass or maliciously injure another; or
(3) the lawyer knowingly asserts material factual statements that are false.8
Keeping ABA Model Rule 3.1 in mind as a baseline for attacking non-meritorious pleadings, it is
important to use a systematic approach to decisively respond to trolling claims.
B. Defense Options for Trolling
First, when presented with litigation that you believe may be trolling, begin by checking for other cases
