Earlier It Was Angels--Now It's a Special Place in Hell

My last column, in September, was titled "Where Angels Fear to Tread." That phrase was taken from a federal magistrate judge's decision early this year.

Now we have another decision where the imagery describes another place utterly without angels--a special place in hell for lawyers who engage in unproductive discovery disputes.

Magistrate Judge Paul Grimm, who wrote the Equity Analytics decision I referred to in my September column, had to deal with another discovery dispute in Mancia v. Mayflower Textile Services Co. As is his style, some of the best parts lie in footnotes, such as footnote No. 3 on page 18, where he refers to U.S. district judge Wayne Alley's caustic observation that "if there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes" (Krueger v. Pelican Prod. Corp.).

In Mancia, Judge Grimm came down hard on plaintiffs' counsel for overbroad and burdensome discovery requests, and on defendants' counsel for vague and non-specific objections to those discovery requests and on both sides for a failure of cooperation.

He started with a discourse on "one of the most important, but apparently least understood or followed, of the discovery rules": Federal Rules of Civil Procedure 26(g).

Enacted in 1983, the rule requires every discovery disclosure, request, response or objection to be signed by an attorney of record, certifying that to the best of his or her knowledge, formed after a reasonable inquiry, the disclosure is complete and correct. The lawyer also must certify that the request, response or objection (a) is consistent with the rules and warranted by existing law or a nonfrivolous argument, (b) is not for any improper purpose such as harassment or delay or to drive up cost, and (c) is neither unreasonably burdensome or expensive given the nature of the case including the amount in controversy."

Judge Grimm observed the following: "First, the rule is intended to impose an 'affirmative duty' on counsel to behave responsibly during discovery, consistent 'with the spirit and purposes' of the discovery rules; this requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot 'behave responsively' during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation."

Second, Grimm observed that the rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated and to both penalize those who are noncompliant and to deter others from noncompliance.

Third, Grimm wrote that, "The rule aspires to eliminate one of the most prevalent of all discovery abuses: knee-jerk discovery requests served without consideration of cost or burden to the responding party," and "the equally abusive practice of objecting to discovery requests reflexively--but not reflectively--and without a factual basis."

Yet despite this rule, "lawyers customarily serve interrogatories and document production requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial. The rationalization for this behavior is that the party propounding Rule 33 and 34 discovery does not know enough information to more narrowly tailor them ... This would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost--to all parties--is proportional to what is at stake in the litigation."

Likewise, "boilerplate objections that a request for discovery is "overboard and unduly burdensome" persist despite a litany of decisions from courts that such objections are improper unless based on particularized facts.

The problem is particularly pronounced with electronically stored information (ESI). As the Sedona Conference states in its 2008 Cooperation Proclamation, "The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information. In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes--in some cases precluding adjudication on the merits altogether."

Judge Grimm noted that the non-observance of Rule 26(g) has been often excused by arguing "that the cooperation that judges expect during discovery is unrealistic because it is at odds with the demands of the adversary system, within which the discovery process operates. But this is just not so."

"A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis," he wrote, or who engages in any of the myriad forms of common discovery abuse hinders the adjudication process and makes the court's job more difficult. Thus, rules of procedure, ethics and even statutes make clear that there are limits to the adversarial system during discovery."

After declaring a pox on the houses of the defendants, for unsubstantiated boilerplate objections to the discovery requests, and of the plaintiffs, for seeking discovery that did indeed appear excessive and burdensome, Grimm described the steps he instructed counsel to follow.

These were his recommendations: Quantify a workable discovery budget that is proportional to what is at issue in the case. Discuss ways in which the plaintiffs' legitimate additional discovery needs could be fulfilled in a less burdensome manner, while reminding the defendants that the burden remained on them to support any claims of excessive burden. He further suggested "phased discovery," so that the most promising but least burdensome or expensive sources of information could be produced initially, enabling Plaintiffs to re-evaluate their needs depending on the information already provided. Finally, he ordered counsel to come back to him with a status report.

"The process outlined above requires that counsel cooperate and communicate," Grimm wrote, "and I note that had these steps been taken by counsel at the start of discovery, most, if not all, of the disputes could have been resolved without involving the court. It also is apparent that there is nothing at all about the cooperation needed to evaluate the discovery outlined above that requires the parties to abandon meritorious arguments they may have, or even to commit to resolving all disagreements on their own."

In my September column, I noted that "It may be counterintuitive to our adversarial process, but cooperation with the other side may be the best thing you can do for your client." A month later, Judge Grimm hammered this point home forcefully.

He concluded his decision with these sentences: "It is in the interests of each of the parties to engage in this process cooperatively. For the defendants, doing so will almost certainly result in having to produce less discovery, at lower cost. For the plaintiffs, cooperation will almost certainly result in getting helpful information more quickly, and both plaintiffs and defendants are better off if they can avoid the costs associated with the voluminous filings submitted to the court in connection with this dispute. ... In fact, the cooperation that is necessary for this process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the time when the case may be resolved on its merits, or settled."

To some degree, forceful judicial rulings will alleviate the practices of brass-knuckled discovery, overbroad requests and unsubstantiated objections to requests. But this is change from the top down--essentially the judiciary throwing down bolts of lightning from their elevated position. The threat of sanctions is a great motivator, and it will achieve some of the results we want.

But to solve the problem we need to understand its root causes. So we need to ask ourselves a deeper question: Why do attorneys so frequently engage in this kind of discovery abuse? Or to put it another way, why don't they cooperate more?

To be comfortable cooperating with your adversary, you need to be confident. In cases with a large e-discovery component, confidence is undermined by the fear of the unknown. Or more specifically, attorneys' fear of what they know they don't know.

People are more on their guard in unfamiliar places. For most lawyers, electronic data is an "unfamiliar place."

In the days not long ago, when most discoverable information was paper, lawyers could conduct discovery with much less of the uncertainty they now feel with electronic data. With paper they didn't need help from specialists. With electronic, they do. But too often attorneys realize they have this need either too late or not at all, and they may not know what kind of help they need or where to get it.

Amazingly, many lawyers still turn to their internal IT departments for help if they have an e-discovery matter. Because it's about computers, isn't it? And isn't that what our IT guys do? No, that's not what your IT guys do, and it's not their job, their responsibility or their expertise. There's an entire industry of consultants and service providers out there that can provide the guidance and support lawyers need with complex e-discovery. The courts know this and now expect that lawyers will take advantage of this readily available expertise. They don't want to hear you whine about burdensome discovery without some expert opinion to back you up, or better yet, to help you realize it's not burdensome after all.

So yes, absolutely, we need more judicial decisions like Judge Grimm's in Mancia. The bench is a bully pulpit. But lawyers will most likely cooperate with their opposition when they are confident. They can get that confidence by obtaining necessary consultative assistance at an early stage. Counsel need to explain to their clients that for the reasons stated by Judge Grimm, they will be better off if counsel gets that assistance, which will empower them with the confidence to resolve discovery issues cooperatively.

An integral actor in litigation support and e-discovery since the late 1980s, Clifford F. Shnier has been a consultant, owner of his own service bureau and a senior sales and management executive with major e-discovery providers. Prior to that, Shnier practiced law in Toronto for 11 years, litigating complex commercial matters, torts and criminal cases, with extensive trial and appellate courtroom experience. Based in Scottsdale, Ariz., since 1994, he is active in the e-discovery arena on both sides of the U.S.-Canadian border.

Clifford F. Shnier

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