Stop paying your lawyers for useless and abusive civil discovery

Dear General Counsel:

I am a workaday civil trial court judge. It's a wonderful public service job and I am honored to have it. But you GCs are making the job pretty miserable when it comes to civil discovery in commercial litigation and I respectfully ask you to stop. It's within your power. More than that, it's in your interest. Your board implores you every year: get a handle on the legal spend, for heaven's sake. Right?

Well, then stop paying your lawyers for their expensive, unproductive, uncivil, unprofessional and abusive discovery practices that provide no benefit to your shareholders nor to the ascertainment of truth. You should tell your lawyers to cut it out in language they will understand instantly. Not more beseeches to civility and professionalism. No, if you stop paying them for it, it will stop - I assure you.

It's hardly a secret that the economic cost of civil discovery is vastly disproportionate to its benefit. More than 12 years ago the Litigation Cost Survey of Major Companies, conducted by the U.S. Chamber Institute for Legal Reform and presented to Committee on Rules of Practice and Procedure, Judicial Conference of the United States, concluded: "The transaction costs of litigation against large companies, especially discovery, are so high that the mandate of Rule 1 ("the just, speedy, and inexpensive determination of every action and proceeding") is simply not being met." Another of the Survey's conclusions: "Inefficient and expensive discovery does not aid the fact finder." For those of us presiding over civil trials, this is a candidate for the understatement of the century. I'd be surprised if even one out of five thousand documents produced in discovery is ever shown to a fact finder.

The Survey further reports: "A discovery system that requires the production of a field full of 'haystacks' of information merely on the hope that the proverbial 'needle' might exist and without any requirement for any showing that it actually does exist, creates a suffocating burden on the producing party." But let's keep it real, shall we? It's not "a discovery system" that's the problem. It's the participants' behavior derived from a long-broken civil discovery culture. Here are some wince-worthy reminders.

"Defendants have thwarted and disrupted discovery throughout the life of this case. As already outlined above, Defendants repeatedly flouted their discovery obligations, failed to promptly communicate with opposing counsel, and repeatedly lodged baseless boilerplate objections to Plaintiff's discovery requests. Best Buy's attempts to use those objections to avoid producing documents are a 'paradigm of discovery abuse." Bursztein v. Best Buy, 20-cv-0076 (AT) KHP), 2021 WL 1961645 (S.D.N.Y. May 17, 2021)

"In short, instead of working collaboratively to come up with reasonable search terms, then working together to refine those search terms, and then cooperatively engaging in sampling and further refinement of those search terms so that relevant documents are uncovered and produced, or cooperatively engaging in any of the numerous other e-discovery techniques that could lessen the discovery burdens on both parties, the [parties] have instead sought to turn the discovery process in this case into a legal variety of hand-to-hand combat." HealthEdge Software, Inc. v. Sharp Health Plan, 19-cv-11020-ADB, 2021 WL 1821358 (D. Mass. May 6, 2021)

The "suffocating burden" (pretty florid language for the Chamber, no?) of out-of-control civil discovery likewise imposes a suffocating burden on the courts. When the dysfunctional, dystopic and abusive civil discovery machine, red-hot and shrieking, finally comes to rest, it is on our law and motion calendars. Pouring off of every page of almost every such motion is the subtext that the lawyers involved have failed in their duties of reasonableness, civility, proportionality, problem-solving, and oversight of our junior colleagues.

As GC, I suppose you rarely involve yourself in the actual sausage-making of civil discovery, and if you came from the transaction side of the profession, you may not have much experience in the discovery realm. Fair enough. Please allow me, then, to lay out the Groundhog Day dynamic. It starts with an absurdly overbroad discovery demand, something like, "produce all documents that evidence or relate to...". Seriously, all documents that relate to? Directed to a publicly traded corporation? Your organization could not possibly meet that demand yet your lawyers seek to impose that very impossibility upon another organization equally unable to do so. Both sides' lawyers are from the starting gate spoiling for an unwinnable and frankly silly fight. One that could have been so easily avoided. How about, "produce the documents that your organization utilizes to document the existence of...."

Next come the rote boilerplate objections. Did you know that your lawyers are signing court documents asserting that every single request for documents, interrogatory or request for admission is vague, ambiguous, overbroad, unintelligible, calls for privileged communications and is not reasonably calculated to lead to the discovery of admissible evidence? This is because an unsupervised associate is following his boss's template created back in the day when the boss was stuck with the job of interposing rote objections. Today's associate justifiably assumes that "this is how it is done" which, of course, is totally wrong. It's an embarrassment and probably even unethical. See, for example, the State Bar of California's Rules of Professional Conduct, Rule 3.1 which provides that a lawyer shall not assert a position in litigation without probable cause.

You might ask your law firm's relationship partner whether this is the firm's notion of successful mentoring. And direct that partner to Rule 5.1 of those same rules which provides that a lawyer acting as a direct supervisor of another lawyer shall make reasonable efforts to ensure that other lawyer complies with the rules of professional conduct. You agree, don't you, that associates deserve to be taught that the best lawyers never interpose an objection to a non-objectionable discovery item? They just (imagine!) answer the question which, in turn, projects professionalism and confidence. Is that not what you want your lawyers to project?

Consider also asking about the "general objections" that you are paying for. I've been doing this for 40 years as in-house counsel, firm associate, firm partner, ABOTA member trial lawyer and now as a judge. Never have I seen any circumstance where the outcome of a discovery matter turned on a "general objection." Nobody reads them, they have no legal significance, and are not even authorized under most rules of discovery procedure which require particularized objections only. So why are they there?

Next comes a critical juncture: the lawyers are supposed to seek to informally resolve their discovery dispute. This is called, in our business, a "meet and confer" because most rules require that counsel actually meet and confer when discovery disputes arise. An actual meet and confer, as the words denote, involves lawyers actually communicating in real time, over the proverbial cup of coffee or at least on a Zoom, understanding that they have a common problem to solve - and then genuinely trying to solve it. But in our broken discovery culture the "meet and confer" has been reduced to letter or email writing campaigns along these lines: "everything I asked for is wholly justified!"; "all my objections are unquestionably valid!"; a bilateral assertion of "you failed to meet and confer in good faith!"; and then mutual sanctions threats. With all the boxes now checked, this hot mess is dropped on the court in a discovery motion.

Now, as GC you may be thinking, so what's this have to do with me? Well, because you're paying for this conduct, you are the ultimate enabler. If, as we all proclaim, we all want it to stop, I call upon you to summon your inner Nancy Reagan: Just say no!

No: We will not conduct our litigation in this fashion. No: We will not engage in unprofessional discovery conduct because it is inconsistent with the values of this company. No: We will not engage in unproductive discovery conduct that delivers no stockholder value. No: We won't engage in "payback" discovery demands. No: We won't fail to supervise and mentor our junior colleagues who may not yet have the judgment and experience to practically seek information in discovery and to resolve discovery disputes.

No: We won't so behave because it's the wrong thing to do and because we don't have to. We can get the information we need to prosecute and defend our litigation using proper, professional methods at a fraction of the cost. And not incidentally, no: We are not going to pay legal fees for unprofessional and abusive discovery conduct any more.

What's that? Did I hear you scoff? You're thinking pie in the sky, right? Yet another judge out of touch with the realities of litigation, you murmur. Well, I come not only with complaints but with suggestions. Let's start with an easy one.

First, I suspect most of you don't truly hate your counterpart GC at your opponent corporation. Sure, you're aggravated with her, and vice versa, but you do not fantasize about grinding her bones to butter your bread. In fact, since you've been around the block a few times, you know the day is not far off when both of you will have taken your licks and will probably focus on cutting a deal to end this litigation. Who knows, maybe that deal will even be a "win-win" for stockholder value. So, you two GCs can have a civil conversation now even though you are in litigation, right?

If so, when the litigation is filed, get your counterpart GC on the telephone and agree up front that you will not permit your outside counsel to wage a withering war of "hand to hand combat" or attrition upon one another - at your collective expense. No seeking haystacks looking for a needle in the absence of reason to believe the needle exists. No "all documents that relate to" requests; no silly boilerplate objections; a "meet and confer" where the senior members of the team actually meet and confer with the expectation that they will solve the discovery dispute. Trust me, those lawyers know how. These are very clever, talented people. Sound good? Let's go bigger. Carpe diem!

Second, somehow, nations of the world got together to draft and adopt the Geneva Conventions which regulate armed conflict. No inhumane treatment of detainees and that sort of thing. On a considerably lesser-stakes topic, why don't you GCs select a subcommittee of the Association of Corporate Counsel to draft The General Counsel's Convention On Proportionate, Humane, Cost-Effective and Rational Civil Discovery. Some first thoughts to get you going:

Preamble: Whereas the discovery process is designed to aid in the finding of truth, discovery is not something "won" or "lost" nor an opportunity for hand-to-hand combat. It is not a gunslinger's belt-notching contest. It is not a warm-up bout for the main event nor a method to signal one's fierceness for eventual settlement negotiations. It is not a contest to interpose the greatest number of objections possible or those that are impossible such as [my personal favorite] "assumes a fact not in evidence."

Article I: The use of "produce all documents that evidence or relate to..." and the like is forbidden. A request for production must call for a production that is practically achievable as tested by the proposition that the propounder's organization could make a responsive production if the tables were turned.

Article II: The firm's relationship partner shall certify that, following inquiry and appropriate supervision of other lawyers in the firm, all particularized objections asserted have a good faith basis in law and fact, and will upon request execute a declaration explaining that basis. No general objections.

Article III: First chair trial counsel shall be responsible for the meet and confer process (which means actually meeting and conferring in real time) to resolve discovery disputes. No letter writing or email campaigns. A genuine meet and confer proceeds from three questions: "What information do you really need from my client?", "What's the problem with the discovery as currently drafted?", and "Can you please help me understand why you think...?"

Article IV: Junior members of our profession must be saved from sleepwalking our extant broken civil discovery culture into their future. General counsel should be mentors to their outside counsel's associate ranks by requiring their firms' proper discovery behavior.

Article V: We don't pay legal fees for lawyer time for behavior in contravention of any of the above.

Last point: GCs, you must categorically support your outside counsel in this changed discovery culture endeavor. You can't have it both ways: telling them they cannot scorch the earth in discovery but then later publicly hanging them out to dry when they don't. Let your outside counsel know - in writing - you will have their backs.

Thank you.

Very truly yours,

Lawrence P. Riff