Every litigator knows that incivility between lawyers often centers around discovery disputes. Federal Judge Mark Bennett (N.D. IA) recently sanctioned a big firm lawyer for obstructive deposition practices. In his opinion, Judge Bennett identified a number of likely reasons:
Discovery—a process intended to facilitate the free flow of information between parties—is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught. As my distinguished colleague and renowned expert on civil procedure Judge Paul Grimm of the District of Maryland has written: “It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery.” Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P.1. It persists because most litigators and a few real trial lawyers—even very good ones, like the lawyers in this case—have come to accept it as part of the routine chicanery of federal discovery practice.
–Security National Bank of Sioux City v. Abbott Laboratories, Case 5:11-cv-04017-MWB (N.D. Iowa, July 28, 2014).
I don’t think anyone can dispute the frequency with which such behavior occurs. I think it no accident that the approach decried by Judge Bennett has become more and more common as lawyers have been placed under more and more pressure to generate, bill and collect more and more hours and larger and larger bills. My point in penning this piece is not to talk about the shameful conduct in which some lawyers engage or even to discuss the root causes of the behavior. Rather, I believe there is a compelling business case to reject such discordant behavior. I’d like to share it for your consideration.
I begin here with this question: how much does a discovery dispute cost? That is immediately followed by: how does the dispute help the client? The easy answer–that it reduces the volume of information to be produced–is not a true reduction of cost, because the information (be it document or the personal knowledge of a potential witness) must still be reviewed to determine whether it should be produced or not. Thus, unless an entire category of documents or information can be taken off the discovery table, any cost savings are likely to be minimal at best and are likely to be outweighed by the cost in legal fees occasioned by the dispute.
Many may know that Valorem handles most of its work on a fixed-fee basis, and many other firms now handle at least some matters using such fee agreements. When your revenue is fixed, any cost erodes profit. Thus, we have an incentive to avoid situations that increase the cost of obtaining an outcome—and by cost, I am referring to the actual out-of-pocket costs the firm pays or income we do not get because of some behavior rather than what the client pays. That number is the price. This approach also aligns our interests with those of our clients.
It would be an interesting experiment to determine if there are fewer discovery disputes in cases where one or the other lawyer is working on a fixed fee. My guess is the frequency of disputes would be dramatically less. Those of us working on a fixed-fee basis spend considerable effort working to avoid disputes because disputes erode our profits. These efforts include frequent, and I believe more realistic, discussions with our clients about the value of the dispute, and frequent, personal contact with our adversaries.
In a recent matter where our client’s opponent was represented by a large firm, I noted that when issues were being addressed by email, disputes ensued. When the lawyers sat down face-to-face, few disputes ensued. I don’t believe that was an anomaly: email is a poor means of communicating and carrying on discussions. Don’t get me wrong, email is a great way to provide information, essentially a one-way communication path. But as a tool for back and forth discussion, it is a poor alternative to face-to-face discussions.
I am old enough to know that this short piece will not likely lead to any appreciable reduction in discovery disputes. But I hope it provides some food for thought and perhaps enough that some may experiment with a different approach to the all-too-frequent disputes. There is a compelling business rationale to do so, putting aside the reasons discussed by Judge Bennett.
For those of you who did not see the articles about the Security National Bank case, Judge Bennett had his own creative approach to sanctioning: he required the sanctioned attorney’s firm to produce an instructional movie for internal firm use on how to not be obstructionist when taking depositions. The firm has said it will appeal the ruling.