“Where are we and what are we doing here?” This is a common question today for both court and counsel in matters of discovery. On a daily basis the courts are being bogged down by extensive and expensive undirected and misdirected discovery contests. Lawyers no longer appear to be saving their “powder” for battles in the courtroom, rather they light up the night sky with as many rockets as possible. The rockets zig and zag across the sky with sometimes little direction, landing in thick hillside brush with the potential of bursting into flames. The courtrooms begin to resemble places heretofore unrecognizable to lawyers of the “good ol’days,” when more genteel and well thought out trial strategies based on relevant discovery was the norm. This situation has caused many to ask the above question and the answer may well be “I don’t know but let’s be practical and assess the situation.”
When addressing a question of diversity of citizenship in 1941, U.S. Supreme Court Justice Felix Frankfurter stated that “[l]itigation is the pursuit of practical ends, not a game of chess,” and that “[a]s is true of many problems in the law, the answer is to be found not in legal learning but in the realities of the record.” Indianapolis v. Chase Nat. Bank, 314 US 63, 69 (1941). The principle that litigation should be the pursuit of a “practical end” should also be applied the 21st century discovery process. In short, lawyers need to stop and say “let’s be practical and assess the situation.”
Historically, litigation was a process governed by “trial law.” Unfortunately, the trial has taken a second seat to the discovery process, resulting in an over emphasis on pre-trial litigation rather than on testing the wits of the parties before a jury. Lawyers used to sit down for hours, maybe days, at a typewriter determining the best document requests to propound to the opposition. The discovery process itself was just that—a process. Discovery was a means to the ultimate goal: “The Trial.” Knowing the likelihood of trial, resources were distributed tactfully throughout the litigation process. Today, however, resources are too quickly spent on protracted discovery that yields very little in the area of relevant admissible trial evidence. There is a desperate need for a resurrection (do you hear an Amen?) of “practicality” in the discovery process.
The legal profession as a whole has unquestionably benefited from technological advancements, but a question remains whether it is “burning down” the legacy of “The Trial” as we know it. The discovery process essentially has two major functions: to “discover” pertinent facts of the controversy and narrow the evidence through the process to determine its relevancy and utility at trial; and to encourage litigants to engage in the self-selecting process, determining which claims or defenses have merit. If a claim or defense does not have evidence to support it, the parties should engage in a good-faith analysis of what arguments can proceed in based on objective evidence sought-out by counsel. Unfortunately, such practicality is escaping the modern day litigation process. The claim of “Your Honor, I believe in good faith that these inquiries will lead to admissible evidence” has taken on a whole new fervor. Likely the root of this fervor is a lack of focus and understanding of the discovery process, especially involving 21st century e-discovery. Today’s litigators overemphasize the managing of large volumes of discovery—whether hard copy or electronic—rather than on what factual issues are central to the controversy and useful to the ultimate trier of fact. Courts, in an act of self defense, will begin using “defense mechanisms,” and sometimes that just might be a good hosing down (think sanctions here) to cool the flames.
Practicality today requires the primary counsel on a case to evaluate from every relevant, tactical and legal perspective BEFORE any discovery requests are made. Associates who are working in the chain of trial preparation must be included in the case management discussions. They too, must fully understand the goals of discovery for the particular case so that they are asking relevant and necessary questions that will result in potential admissible evidence. Further, with a fuller understanding of the case, associates and other’s in the chain of trial preparation are better able to more accurately respond in good faith to discovery requests from opposing counsel. All counsel should think in terms of the calamity and the nightmare scenario that befell the lawyers in Qualcomm v. Broadcom, 548 F3d. 1004 (2008). Good faith is not an abstract concept. Good faith has a practical and meaningful application in the discovery process and in the courtroom.
TO BE CONTINUEDMaureen Duffy-Lewis is a Los Angeles Superior Court judge. She currently sits in Department 38 at the Stanley Mosk Civil Courthouse. Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science. He is an e-discovery neutral and serves as a court appointed special master with Alternative Resolution Centers. He also serves as e-discovery advisor to Digital Reef, Inc. He can be reached at firstname.lastname@example.org.