THE STANKOWSKI REPORT #7: The Truth About Discovery
by Stan Stankowski
So, I am sitting in my office. Admittedly, I am a bit bored. Quite frankly, discovery disputes have become a large, and unfortunate, part of my life. Don't get me wrong, I do not mean the actual responses, though I do a huge number of those as well. I mean the pseudo-disputes.
Normally, disputes are entertaining; they give you something to get worked up about. Somebody did something that makes you feel just a little indignant, even though it is your job and you deal with it everyday. That, at the very least, creates a little motivation. It makes you feel a little righteous anger at least once a day. You would not believe how far a little righteous anger goes when you are bombarded by conference calls, meetings, stupid documents and other somewhat boring tasks.
Not so with discovery. "Why?" you ask. Fine question. In the long run, discovery is as good a thing to get incensed about as anything else.
The main problem is that discovery disputes are so transparently fake. A typical conversation leading up to one will progress as follows:
Any senior lawyer: Well, what do you think about requests one and two?
Stan: Well, they ask what the address of client is and what state client is registered as a corporation in. I really don't see the harm.
Any senior lawyer: It is an outrage, it is unduly burdensome. They already know these things.
Stan: Well, exactly, so lets just throw them in. Can't hurt.
Any senior lawyer: Of course it can, and besides, I have to get pissed about something.
Any senior lawyer: For the motion to compel.
Stan: Why would we do that? There are only six questions here, all of it is pretty basic, we are obviously required to answer these interrogatories.
Any senior lawyer: Well, only if a judge sees it that way.
Stan: Is there a judge who won't?
Any senior lawyer: A judge will be just as outraged as I am, that is just your inexperience talking. You should be more like the Uncivil Litigator, he really gets what this is about.
Any senior lawyer: Object to everything.
At any rate, the truth of the matter is that we create enormous problems for ourselves. There isn't a point. Indeed, we are creating this fight out of whole cloth. A typical progression proceeds as follows.
My firm (in response to any query): What the hell? No way.
Other firm: Those bastards. No way to any of yours!
My firm: Not gonna do it!
Other firm: Neither shall I.
My firm: We'll see what the judge has to say. I want sanctions.
Other firm: Ditto.
Judge (after a whole lot of other crap): You are both hideous little people who fight about nothing. Both of your motions to compel are granted. No fees.
And what good came out of this? None at all. Wait ... that's a lie. Come Christmas, I am getting a bonus for working a whole lot of hours. Client? Whatever. I need a check.
As I was saying, there is nothing like a good discovery dispute to get the juices flowing.
Author's Note: To all the wonderful and tolerant people who chose to comment on my choice of terms to make a satirical point in Stankowski #6: Congratulations. I hope that you experienced some sort of ecstatic glow upon reprimanding me for my lack of class. If you are a better person for it, then so am I. Really. It must have been about as satisfying as getting a motion to compel granted without sanctions. In which case, I know exactly how you feel.
About the Author: Stan Stankowski is the pseudonym of a first-year associate working in a litigation firm somewhere in the South. For more details, read his introductory post, as well as Evan Schaeffer's introduction. The collected Stankowski Reports are here.