January 10, 2020 Feature

Good Faith in Discovery

Much of the unpleasantness that characterizes discovery can be avoided using a single rule of civil procedure.

Hon. Paul Grimm

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Why do lawyers and judges complain so much about discovery in civil cases? It takes too long and costs too much. There is too much contention and game playing and not enough cooperation. Judges don’t want to get involved in resolving discovery disputes and are ill-tempered when they have to. The laments go on and on. But a moment’s reflection suggests that the way in which discovery typically is conducted virtually guarantees there will be disputes. Consider this: Discovery requests and responses are not filed with the court (unless attached as an exhibit to a motion); once the process starts, the parties are free to file and respond to discovery requests without court permission or supervision, in any sequence they desire; and the means by which discovery can be obtained (interrogatories, document requests, inspections, mental and physical examinations, depositions, and requests for admission) often overlap and are duplicative. Moreover, the omnipresence of digital communication devices (smartphones, tablets, laptops, desktops) and methods (email, text messages) and round-the-clock ability to send a snarky communication to opposing counsel (without having to look them in the face) over a discovery dispute seem preordained to ensure that the interactions between counsel are as unpleasant as they are unproductive.

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