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.