The lawyers are back in court on their third discovery dispute. A four-page motion was met with a 10-page response. Which somehow garnered a 12-page reply. Somebody just requested sanctions, although the underlying issue seems prone to multiple interpretations. Worse, while this latest dispute is hotly contested, the discovery in question doesn’t even seem all that critical to the main contentions of the case.
Back in chambers, the judge asks the lawyers if their clients have any interest in revisiting their stalled efforts at mediation. Both sides shake their heads. Their clients have already spent too much time and money to settle now. They intimate that the legal fees and expert costs are fast approaching the value of the claims, and the only way forward is by prevailing at trial. By this point, everyone realizes that both parties will feel angry and abused by the system, regardless of who ultimately prevails. It’s a mess. And, frankly, it was wholly avoidable.
Don’t Make Mountains out of Discovery Molehills
Gone are the days when lawyers were broadly encouraged, under former Federal Rule of Civil Procedure 26(b)(1), to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” The current version of that same rule now adds the further requirement that the discovery also be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
As Chief Justice Roberts noted at the time, this change grew out of a concern that “in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts.” The hope was that this refocusing on proportionality would “(1) encourage greater cooperation among counsel; (2) focus discovery … on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information.” But it hasn’t always worked out that way—neither in the federal system nor its analogous state counterparts.
In my standing orders for civil cases, for example, I remind all counsel of the court’s expectation that discovery requests—and the disputes arising out of them—will be measured against this standard of proportionality. Not every request, even if nominally relevant, is worth pursuing to an exhaustively compliant response at any cost. Conversely, not every objection, even if reasonably founded in good faith, is worth the resulting fight when balanced against the countervailing ease or harmlessness of potential production. Nor is every dispute worth exceeding the page limitations in resulting motions practice. Clients are paying for all of these disputes, and sometimes they get a better bargain by counsel carefully choosing where to give ground as well as when to make a stand.
Clients are paying for all disputes, and sometimes they get a better bargain by counsel carefully choosing where to give ground as well as when to make a stand.
For that reason, I routinely urge all counsel to contact the court informally after reaching an impasse but before filing formal discovery motions. A short conference call will often reveal both practical concerns and practical solutions that a mutual rush to briefing might obscure. Getting the lawyers into a dialogue not only about why they believe they’re entitled to the disputed discovery but, more importantly, why they believe they actually need it for the crucial parts of their case. A half hour phone call often avoids days of drafting motions and replies, and weeks of lost time to briefing schedules, while yielding practical, reasonable ways to get discovery back on track. All without the sort of grandstanding arguments that may look good on paper but over the long run are often counterproductive in practice. Finally, even where that approach occasionally fails to bridge the gap, that informal dialogue can help frame the record and build a more constructive tone in the motions practice that follows.
As Justice Felix Frankfurter famously observed, “[l]itigation is the pursuit of practical ends, not a game of chess.” With that in mind, here are four practical tips to demonstrate your proportional, reasonable approach to discovery when faced with such an impasse:
1. Be Specific about the Costs or Benefits of Production. Proportional discovery is largely a matter of balancing anticipated value against apportionable expense. Under this rubric, it is far more persuasive for you to document why you need the disputed discovery for your case than why you think the rules allow or require the production. Conversely, a detailed accounting of how much time or expense your client would incur in making the production is more persuasive than an abstract argument just about nominal relevance. Better yet, document the specific marginal costs associated with this disputed production against the actual costs your client has incurred in all discovery to date, contextualized where appropriate against the disparate resources of your client or the relative scale of the parties.
2. Document Your Cooperation. Where possible, contemporaneously memorialize those areas where you are giving ground, or have previously, in your own effort to either minimize the burdens of production or satisfy the needs underlying the disputed request. If someone is going to look unreasonable, let it be your opponent. Recognize that your early emails or letters with opposing counsel may eventually end up before the court. Frame your position to show in real time the concessions you are making and your efforts to avoid the impasse.
3. Propose Practical Solutions. Rather than flatly saying what you won’t do, suggest what you would do to avoid the impasse. If the issue is the overbreadth of the request, volunteer the tailored subset that you are prepared to produce. If the issue is the cost of production, propose a cost allocation mechanism that would allow your opponent to get what he or she claims to need—but at their own expense. Sometimes, those anticipated needs take on an entirely different hue if your opponent is footing the bill.
4. Avoid Ad Hominem Attacks. The proportionality requirements of Rule 26(b)(1) were expressly intended to foster “greater cooperation among counsel.” Nothing unwinds that collaborative approach faster or more irrevocably than personal attacks on the opposing lawyers or clients. Contest proportionality from the basis of your needs, your resources, or the burdens it would impose on your side. It’s fair to contrast that with the objectively lesser needs or burdens faced by your opponent. But it’s rarely appropriate to impute malice or bad faith to your opponent, and rarer still for that approach to be effective. Not only are such attacks unprofessional, they are counterproductive. And believe me, judges notice.
Ultimately, in proportional discovery disputes, counsel would be wise to embrace the advice of another preeminent trial lawyer, Abraham Lincoln, when addressing the Illinois Bar in 1850:
Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
That’s good advice—and still true under the modern rules.
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