Litigation has changed this century, and perhaps most significantly, e-discovery has become the primary litigation expense. Conversely, and notwithstanding recent heroic and effective efforts at reform, our discovery rules continue to be perceived by many as part of the scenery out of a “Mad Men” episode, from a now-distant era that has disappeared along with slide rules, Ford Edsels and three-martini lunches. Our discovery rules were first written in 1938, and the original imperative to obtain all relevant documents continues to dominate many litigators’ outlooks on discovery. We need some new “unofficial” rules to banish this ancient perspective.
Before the advent of discovery, civil disputes were primarily resolved at trial. Each side marshaled its resources and went to trial within months of filing the complaint. The best lawyers were able to tell the client’s story with a compelling direct examination and demolish the opposition’s tale with penetrating cross-examination. This was the era of Daniel Webster, Stephen Douglas, Clarence Darrow and the rest of our legendary courtroom heroes.
Unfortunately, our litigation culture is still mired in antiquated habits that obscure the flexibility recently grafted into the civil discovery procedure rules, and that keeps us mired in exponentially increasing terabytes of ESI. Therefore, we need a set of new tactical rules to escape the weight of old discovery prejudices inculcated by years of pursuing everything relevant.
What are the five new tactical rules?