November 03, 2015 Articles

A Challenge to Corporate Counsel to Regain Control of the Discovery Process

Stop fueling discovery disputes and focus on managing discovery and strategically pursuing fee-shifting

by Zachary G. Newman

The discovery phase of litigation dominates too many lawsuits, resulting in significant and unpredictable costs and little progress. As economic and business pressures intensify, the costs associated with and resources dedicated to discovery continue to attract scrutiny from clients and the courts. Corporate clients, which can spend more than 50 percent of their total litigation budget on discovery, are anxiously insisting upon new approaches and innovative solutions. As discussed below, the most effective solution may simply be for corporate litigators to reassess the way in which they traditionally manage and approach discovery.

Is Discovery Drowning the Litigation Process?
Discovery is becoming so difficult to manage efficiently that effective corporate litigators should stop and consider whether they actually are contributing to the problem. The costs associated with petty and unfruitful discovery disputes are complicated by the ever-growing availability of and disputes over electronically stored information (ESI). "ESI is now a common part and cost of business." United States ex rel. Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726, at *5 (D. Nev. Aug. 25, 2015). Furthermore, while "parties to litigation would be much better off if they did not have to disclose certain evidence under their control . . . this is not the state of affairs intended by our adversarial system, nor is it amenable to [the] rules of discovery." Huggins v. Fed. Express Corp., 250 F.R.D. 404, 405 (E.D. Mo. 2008) (negative history omitted).

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