At this year’s Legal Tech, I once again had the honor of moderating the Judges Panel, including Judge John Facciola (D.D.C., retired), Judge Andrew Peck (S.D.N.Y), Judge Frank Maas (S.D.N.Y), and Judge Elizabeth Laporte (N.D.Cal.). This time, we had a provocative topic (or, perhaps –as Judge Peck put it–, a depressing one): “What’s Wrong with Discovery?” The judges had plenty of insight into why discovery has become risky and expensive, what causes attorney misconduct in discovery, and implications for access to justice. Below are ten highlights of that discussion:
“Lawyers rarely engage in a cost/benefit analysis before they go to war.” –Judge Facciola
Judge Facciola reflected that one of the biggest differences between the practices of law and business is that in business, risk analysis is always an element of business judgments. However, in the legal profession, “lawyers are still doing this by the seat of their pants,” which is why they often reflexively fight each other in discovery rather than cooperate. With an honest look at discovery costs –including expenses and the risk of angering your judge –cooperation is clearly the better path. To those attorneys who have been unable to convince a client to cooperate, Judge Facciola says, “Send him a bill.”
[Parties need] “a remarkably small subset of all that is out there to discover.”–Judge Maas
Noting that, “Civil trials have basically gone the way of the dodo bird,” Judge Maas expressed frustration that litigants still seek “discovery of everything,” with plans to later sift for what they actually need for a trial that “is never going to happen.” Instead, he explained that attorneys should, at least initially, seek the limited evidence that they really need to have an intelligent discussion about settlement.
“It’s very rare that it is going to be subject to a mathematical equation or algorithm, where you come out with an exact number…but there is a zone.”–Judge Laporte
Judge Laporte explained that proportionality is related to the concept of reasonableness, with which attorneys are already familiar. The “zone” of reasonableness in a case may be larger or smaller depending on the factors.
“What is fundamentally fair in these circumstances to the two sides?” –Judge Maas
Judge Maas said that proportionality “is to some extent a buzzword that became popular in the last few years.” But, while judges’ use of this concept may change how discovery disputes are discussed, it mirrors his approach to discovery going back many years, which is to focus on what the parties need and what is fair. Judge Laporte added that if parties want to “win” discovery battles, their best course of action is to have a more reasonable proposal than their adversary. A reasonable proposal indicates to a judge that the party is being fair to the other side, rather than trying to skew things in some way. Parties can demonstrate fairness by establishing where the most relevant evidence exists, and agreeing to produce it.
“I guess I would have to be a foolish optimist to think that’s going to happen based on what I’ve seen over the course of being a judge over 16 years, which is there’s a really big lag.” –Judge Laporte
Judge Laporte stated that the new rules could make a great difference, but only if attorneys “actually read them and read the commentary, and then take them to heart.” Prior rule changes have done little to immediately create great change in actual federal practice, and based on that, Judge Laporte believes that we may need to wait longer than December to see wider adoption of proportionality and reasonable discovery conduct.
“RTFR.” –Judge Peck
Judge Peck stated that many discovery disputes could be avoided if the parties plan ahead using mechanisms in the Federal Rules and understand the rules as they proceed through discovery. Quoting Chris Dale, Judge Peck said this is best stated as RTFR: Read the F[…] Rules! (And “F” does not stand for “Federal.”) Judge Peck said that, for example, it is astonishing to see motions under Federal Rule of Evidence 502(b) regarding failure to adequately protect privilege, when the issue could have been avoided with an earlier order under Rule 502(d).
“[The] problem is tradition.” –Judge Peck
Judge Peck explained that senior lawyers who are running cases are often attempting to engage in discovery today in the same way they were taught to do it years ago. “They think manual review is the be all and end all because that’s what they did as young associates.” However, the world has changed and given the volumes of ESI today, manual review is no longer the gold standard. Judge Peck reminded attorneys that is it their job to educate themselves, their clients, and sometimes their judges, on the technology issues they face during discovery.
“[Formal discovery] should be the very rare exception.” –Judge Laporte
Stressing the expenses of 30(b)(6) depositions, Judge Laporte encouraged informal discussions of discovery issues. Judge Peck also explained that in an informal discussion, attorneys can creatively work through difficult discovery issues. In contrast, formal discovery can be difficult, because if you try to ask technological questions in depositions but do not frame them correctly, you will get gibberish responses. Judge Maas said that he always instructs parties at the initial conference that he wants to resolve discovery issues informally, such as through joint letters from the parties or telephone conferences with him.
“You say, ‘How are you going to [conduct discovery]?’ And they say, ‘Well, we’ve hired 35 contract attorneys, and we’re going to lock ‘em in a room, and we’re going to go through every document word for word.’ And you say, ‘Wow, have you taken leave of your senses?’” –Judge Facciola
Judge Facciola recommended that attorneys taking this approach should ask themselves whether there is a better way. They should also ask themselves whether they have discussed all options and costs with their client. He reminded lawyers that they know how to distill information and should be able to apply that skill to find the most relevant materials in discovery: “Your job now is to get to the heart of the matter. A great trial lawyer has an instinct for the jugular, not the capillaries.”
“I’m not so sure that given where we are now, and the data sets with which we have to deal, whether the luxury of an adversarial system will survive.” –Judge Facciola
Judge Facciola observed that because of the high costs legal services in the United States, 83% of its people will never speak with a lawyer in their lifetimes. Of cases that are filed, the small percentage that go to trial almost always involve very wealthy litigants. The role of prohibitively expensive discovery costs have further closed off the courts, to the point that today, “the middle class is gone from federal courts… This is utterly and completely out of hand.”  It might help if fee-shifting statutes were better enforced, and Judge Facciola expressed hope that more efficient technology might make discovery less expensive. He noted that originally, the Federal Rules did not contemplate adversarial discovery, and that the better approach may be a less adversarial one that avoids the current war of attrition that lawyers use to drive settlement negotiations.