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.

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."

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.

Clifford F. Shnier

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