Sandbagging

A sandbag or sap was used by some ‘muggers’ to hit victims over the head, temporarily stunning them and rendering resistance difficult. In law, the term has come to mean the filing of motions or delivery of documents at a time that makes it very difficult for another lawyer to respond, for example 5:30 p.m. on the Friday before a holiday weekend or just before Christmas etc., or on the eve of a meeting or hearing. As a tactic, sandbagging is often used by large firms against small firms, or lawyers they perceive to have fewer resources.

Sandbagging is an unwise practice for a number of reasons. First many lawyers cleave to the motto “one good sandbagging deserves a worse one (or another)” means that retaliation can be expected and it is likely to be much worse than the original sandbagging; the end result is simply to cost the client money. Second, sandbagging tends to anger the other party and its lawyers, rendering civil relations between counsel difficult, which also raises costs for all parties with little legal gain. Third, judges, arbitrators and courts are not naïve and tend to recognize sandbagging when they see it, while the sandbagging may also spoil the judge and his or her clerk’s weekend; this usually is very counterproductive for the sandbagger.

An unsubtle and obvious form of sandbagging in negotiations is to deliver documents late and converted into printed, i.e., non-data format or “locked” image files, thus rendering editing, search and/or response difficult. In due diligence it may give rise to questions about whther the producing party is participating in good faith in the underlying review.