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June 30, 2005

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mythago

You are both hideous little people who fight about nothing. Both of your motions to compel are granted. No fees.

I will pay any sum you name to be present in court when a judge says this on the record.

mobar

Please state all facts that support your contention that discovery disputes are transparently fake.

Evan

Mobar: Objection, that request seeks information that is protected by the attorney-client and work product privileges. Further, the request is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, and is further objectionable in that it seeks information that would reflect the identify of actual attorneys, invade the privacy of those attorneys, and require actual attorneys or their clients to finally speak the truth about something. Subject to and without waiving the foregoing objections, I'm still not giving you an answer.

(Commenter's note: My thanks to the defense lawyer who drafted the actual objection upon which this comment is based. The actual objection, if you must know, was only the first in a long series of objections which are sitting right now in a giant stack next to my telephone. Later in the day, I might move this stack and set it on top of a second stack of objections that is sitting right now on the floor near the front left corner of my desk. Or I might leave the stack where it is.)

Aaron

If you get a large enough stack, may I suggest you get some flour and water and, if you have a few minutes between working, blogging, and tiptoeing past the sleeping members of your family on your way to and from work, building a papier mâchè tribute to "the defense lawyer".

Mike

Man, this is so true. I worked at a (soon-I-learned) scummy plaintiffs' firm. Beneath their scum lied more scum - civil defense lawyers.

Once, when we propounded rogs asking that the defense identify its custodian of records, they objected on the ground that no such person existed. Of course, California law requires every corporation to have a COR, but so what? I then dug through an old set of discovery responses that had been filed with the court (long story why this is done in certain mass torts cases) and sure enough; the same lawyer who said no such person existed, because no such person could exist, had previously identified a COR.

Discovery sucks because judges don't get involved early enough. Every time we'd file a motion to compel or otherwise involved the court, we'd get our rogs answered.

I'm all for litigation reform. No more frivolous lawsuits - and no more frivolous discovery requests. Funny how the defense bar, so eager to call lawsuit frivolous, doesn't want discovery reform.

Mike

Should have said: "no more frivolous discovery objections," though I'm also against frivolous discovery requests.

Eh Nonymous

Evan: thank you for that delightful objection.

I'm not sure it would be overruled, but if timed *just* right, it could get a judge to smile. Or order contempt. Either way.

Mythago: you're pretty free with other people's imaginary money, aren't you?

Stan: are you implying there's a conflict of interest between clients who want a dispute actually resolved, compared to lawyers who want to bill the s&%) out of the client, fight to a draw, and achieve a satisfactory settlement (or verdict or dismissal, whatever) while earning the admiration of client, colleagues, and peers on the way?

Ted: wherever you are, this is a topic right for overlawyering. It's about lawyers who bill by the hour, and rise by the gnash-of-tooth and fiery brief, who are bilking their clients, trashing the process, infuriating the judge, tying up the courts, and not advancing the process one bit. This is where zealous advocacy meets lack of decorum and professional demeanor, not to mention candor to the court and duties owed to all parties.

Objection: Irrelevant, immaterial, and incompetent!

Objection: That question calls for an answer which, if given, would advance the other side's case.

Alternatively, Objection!
Judge: What's the basis?
Objector: It makes my client look guilty as hell!

Eh Nonymous

"ripe" for overlawyered, aka overlawyering.

mythago

Mythago: you're pretty free with other people's imaginary money, aren't you?

Damn straight. I'm a plaintiffs' lawyer, so I can't be extravagant with my big corporate client's money. Allow me my little fantasy expense account.

In the asbestos world, some cities have court-mandated discovery as part of 'general orders' to streamline asbestos litigation. The neat thing about this discovery is that the wording is fixed by the Court, and so is the obligation to answer those particular items of discovery--so if a defendant doesn't answer, what they are facing from us is not a motion to compel, but an ex parte application for an Order to Show Cause re: Contempt.

I don't get much late discovery from those.

ajhalluk

Just don't watch the director's cut of Return of The King and then get on to the other party to a discovery dispute on the telephone.

"There will come a day when we yield to you the electronic records that you seek. But it is not this day!"

Stan

Ajhalluk,

That is the funniest thing I have read in weeks. Absolutely Hilarious.

TP

The life of a first or second year litigator at most BigFlaw firms is pretty much summed up by my friend's description:

I spend my time trying to think of ways to prevent the other side from getting documents they're plainly entitled to, for no good reason, and vice-versa.

Dixon

This is just an example of why interrogatories are, for the most part, fairly useless. Each side should get virtually complete access to the other side's documents (save the attorney/client stuff). Then take the deps and try the case.

Ted

My name's been invoked, I see. It's worth noting that there's already been tort reform in this area in the federal court in revisions of Rule 26 and Rule 37, which obligate certain documents and information to be disclosed forthwith without a request. They don't seem to have improved the nature of the fight. So I'm curious what concrete suggestions people have to improve the system.

You might be surprised to learn that I heartily agree that current discovery practices—both in terms of requests and responses—are objectionable. I winced through years of being a junior associate and being instructed by partners to take aggressive positions on resisting discovery that I thought were unreasonable and cost-inefficient. I vowed that I would do things differently.

Then, one day, the opportunity came: I was in charge of coordinating discovery responses with the client and organizing production in two cases, one involving a corporate business dispute and another defending a consumer class action. In both cases, the plaintiffs on the other side issued wildly overbroad discovery requests asking for every scrap of paper ever created by the corporation; in both cases, I was honest, forthright, and reasonable in offering up production within a certain scope and time-frame: this is what we're searching, this is what we're producing, this is what we're not producing, this is why we're not going to produce what we're not going to produce, and why you don't have a need for what we're not producing, subject to what I could persuade the client to agree to without a court order. Oh, Plaintiff, you want the X in Request No. 423 for reason Y? I misunderstood, we'll withdraw the specific objections and get you that also. From simple game theory of optimal tit-for-tat strategy, you would think that this would get me concessions in reasonableness, both in terms of their discovery requests on us and our discovery requests on them. It's a long story, but let's just say I was sorely disappointed; I didn't even get the benefit of the other side cooling its rhetoric in motions to compel. Lawyers take a hard line on these issues because the other side (1) doesn't trust you, which is why you two are in litigation, and (2) is usually better off taking a hard line no matter how cooperative you are. Which means in most circumstances that your client is also better off if you're not cooperative in the first place; unilaterally conceding rarely reduces the amount of discovery disputes, and all too often simply moves the battleground disadvantageously.

Eh Nonymous

Ted: very nice point, thanks.

I see what you're saying as a simple but real-world messy version of the prisoner's dilemma. Unilateral disarmament leads to the other side going wild on you, and you suffer.

Of course, not all negotiators are as stupid as the litigators on the other side were (or maybe I'm being naive). But in repeat play, the "tit for tat with initial trust" setting is way high up there for the most advantageous positions possible. I think the "tit for tat with initial betrayal" leads to infinite double-cross, and the lower-right (worst) square in the reward grid. Of course, if the negative possibilities are too negative, then no litigator would ever risk cooperating, and tit for tat would be useless, with the occasional optimist getting burned, as you were.

But at the negotiating table... which is where disputes should be taken, rather than carried out by phone or taken to the judge, unless they really are being jerks... it's harder to betray, bluster, and be-a-jerk. Litigators don't want to lose their reputation for toughness... nor should they, necessarily... but your reasonableness scheme sounds like a good way to go. It saves resources. It lets the truth come out. It's playing by the rules. Judges should like it.

And if I were a judge who saw evidence of cooperative intent on one side, and typical blowhard bluster on the other side, contempt wouldn't be enough. I'd be all Rule 11, with a quickness.

... of course, the hardball sanctions that usually come out of lopsided situations like that, make everyone outside think it was unfair. "Aww, they got findings of fact made against them/ had the burden of proof moved to their side/ got liability judicially determined against them and were left arguing about damages/ lost on their issues that discovery would produce, and were kicked out of court." My bleeding heart.

If judges regularly were not just tough (they have to be tough; I've seen them be tough, since scarce resources are usually allocated better) but actively punished bad behavior, I think we might see less of it. At least, in front of those judges.

Again, my personal thanks to all who commented, this has been a fascinating conversation.

Evan

Ted: I appreciate the thoughtfulness that went into your comment and your discovery strategy, but I must say, when a defense lawyer tells me "why [I] don't have a need for what [he's] not producing," it usually makes my skin crawl and sometimes I lose my temper. The rest of your approach I'd agree with.

Why does that line, which I hear a lot, drive me nuts? I suppose it's because it assumes the defense lawyer knows more about my own case and how I want to present it than I do. Obviously, I'm being too sensitive, but I'm probably not alone, and I don't think that line is a good one.

By the way, not every plaintiffs' lawyer files "wildly overbroad discovery requests." I've recommended before that that both sides should usually make their requests narrow, not broad--see this post on my trial practice weblog. I'll admit that sometimes I don't follow my own advice, but when I decide to ask for "every scrap of paper" about an issue, I've thought about it first and have a good reason to do it.

mythago

I spend my time trying to think of ways to prevent the other side from getting documents they're plainly entitled to, for no good reason, and vice-versa

Or the other alternative, often seen in patent law: produce EVERYTHING. They want to know about your invention? Throw in six or seven boxes of copies (mostly redundant) of stuff from your clipping service. Paralegals call them "discovery bricks" because you throw hundreds of boxes of crap, hoping to conceal the occasional diamond the other side really wants.

Ted

Why does that line, which I hear a lot, drive me nuts? I suppose it's because it assumes the defense lawyer knows more about my own case and how I want to present it than I do. Obviously, I'm being too sensitive, but I'm probably not alone, and I don't think that line is a good one.

Well, but the assumption goes both ways; as the defense lawyer, I know a lot more about what documents my client has that are responsive to your request as drawn and I'll know what your request is calling for and have a good sense of what documents I'd be looking for if I were in your shoes, and to what extent there's a match. For better or worse, Rule 26 allows me to do a cost-benefit analysis between the burden of production and the likely benefit of the documents produced, and if I see that the plaintiff's lawyer has inadvertently requested file cabinets for an unrelated line of business that seems to me to have nothing to do with the underlying dispute, but will require hundreds of hours to screen to avoid attorney-client waiver issues, I have an ethical obligation to suggest that I don't have to spend hundreds of thousands of dollars of my client's money producing those documents unless the other side can rationalize why they want them. So I counsel a bit of patience, Evan, or at least a bit of empathy. We're doing what we can.

There are certainly defendants out there (particularly ones from nations that don't have American-style discovery rules, so culturally find American discovery requests baffling and inherently unreasonably intrusive) who stonewall, and I've been on both sides of that issue.

Mythago, I've seen a prominent lawyer recently profiled by a national legal magazine move for contempt sanctions on an allegation that we failed to produce an article from a clipping service. Ok, the judge eventually refused to buy it, but unfortunately allowed the matter to procedurally drag on for over a year, at great expense.

Aaron

I see what you're saying as a simple but real-world messy version of the prisoner's dilemma. Unilateral disarmament leads to the other side going wild on you, and you suffer.

Of course, not all negotiators are as stupid as the litigators on the other side were (or maybe I'm being naive).

In the situation described, it sounds like Ted's firm had fought long and hard over a course of years to earn a reputation as obstructionist, and until that moment (and perhaps in every subsequent moment) Ted had been actively involved in the obstruction. If you spend enough years actively poisoning the well, even if on the instruction of partners, it seems a bit rash to blame the recipient for being skeptical when you swear that you are offering them (for the first time ever) a glass of pure, fresh, untainted water.

There are defense lawyers I would trust if they were to assert that a particular document did not exist. And there are others where I would want to see for myself. The lawyer who would fall into that first category but for heeling to the commands of partners who order obstruction, probably would have to switch firms before he would start earning my trust.

Ted

I'm amused at the charges that defense counsel are especially guilty of "obstructionism" and "poisoning the well." I had more than a few cases where I represented plaintiffs in business disputes. And I took the attitude as defense counsel that discovery was a tool that defense could use to prove its case as well, and that a defendant should be out there affirmatively acting like a plaintiff, taking the fight to the other side, generating admissions and concessions. And the most obstructionist lawyers I ever dealt with, the ones who most often steadfastly refused to ever answer interrogatories or discovery requests or requests for admission, the ones who sandbagged their theories of the case most often, were traditional plaintiffs' lawyers—which perhaps isn't too surprising, because in a business dispute, today's adversary is tomorrow's (or yesterday's) co-counsel, so there's some incentive to have a modicum of civility. Several years apart, I litigated for and against Kirkland & Ellis, and they never stonewalled as much as these guys. So when I complain that my willingness to be forthcoming wasn't reciprocated, it's not just that the discovery requests didn't become any less onerous, but that the other side's discovery responses didn't become any more cooperative.

mythago

and I'll know what your request is calling for and have a good sense of what documents I'd be looking for if I were in your shoes

"I know what you asked for, but if I were you that's not what I would have wanted."

I do occasionally gets calls from defendants saying they no longer have documents from a particular time period, or that they've already produced something. As Aaron says, if it's a defense attorney I know to be reasonable, I will usually take them at their word. If it's a firm that routinely stonewalls or whose clients have all had mysterious warehouse fires in the late 1970s, I'm not as likely to back off.

Ted

"I know what you asked for, but if I were you that's not what I would have wanted."

Some corporations produce stunning amounts of paper to make data entry idiot-proof, and then compile the data on a single spreadsheet. I don't think it's unreasonable for me to ask opposing counsel when they ask for "ALL DOCUMENTS RELATING TO sales of THE RELEVANT PRODUCT" whether they really want several hundred thousand pieces of paper as proof of our sales when there's a single five-page report whose authenticity I'll stipulate to that summarizes the same information. I had another client that generated daily sales reports, but the sales report for the 31st looked just like the one for the 30th except for the extra line: is it okay if I just produce the monthly reports with the day-by-day sales, or do I have to go into the warehouse to retrieve 30 times as much paper for the dailies that add no additional information that your expert is going to charge your client several thousand dollars for the privilege of throwing away? Your expert claims that the relevant geographic market is the United States of America, but your document request is broad enough to include our unsuccessful negotiations for sales in Bolivia. Do you really want this stuff? My client is a conglomerate, and you've sloppily drafted your requests to include documents from a completely different line of business, so, no I'm not going to produce our documents about (say) stereo systems in a case about (say) masking tape, and so on.

mythago

I don't think it's unreasonable for me to ask opposing counsel when they ask for "ALL DOCUMENTS RELATING TO sales of THE RELEVANT PRODUCT"

There's a big difference between *asking* (or meeting and conferring, if you're on more formal terms) versus simply producing the five-page report with an "Oh, you didn't really want all those silly old documents anyway." Well, maybe I did, or maybe I wanted to discuss which of those thousands of documents might contain the relevant information. But if I get an objection that it's just tooo hard to produce all that stuff, and I have to pry out of opposing counsel that maybe some alternative exists, I'm less likely to accept somebody's affirmation that there's a five-page equivalent.

Stupidest discovery issue I ever had to deal with didn't involve documents, by the way; a car manufacturer wanted to go to the plaintiff's house, take his collection of classic cars, remove them to a dealership, and have their mechanic disassemble them and check for asbestos-containing parts. They were astonished that "but we'll put them back together afterward and pay for transportation!" didn't cut much ice with us.

Aaron

Ted, I referenced only the pattern of conduct you described for your own firm. I would not suggest that other attorneys or firms, plaintiff- or defense-side, are not guilty of similar sins. But first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother's eye.

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