Trials & Litigation
Curb Out-of-Control Discovery, Report by Trial Lawyers Group Recommends
Posted Mar 11, 2009 11:17 AM CST
By Martha Neil
Out-of-control discovery in civil cases can be so expensive that it prevents parties from litigating legitimate disputes, a joint report (PDF) by two legal organizations says.
Prepared by the American College of Trial Lawyers task force and the Denver-based Institute for the Advancement of the American Legal System, it calls for discovery rules to be revised to comport with the age of e-mail and computerized documents, reports the Associated Press.
In addition to limiting discovery, the state and federal court systems should also assign a single judge to handle each case from start to finish and give judges the power to order mediation, when appropriate, the report recommends.
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Comments
B. McLeod
Mar 11, 2009 11:32 AM CST
I am sure we all know a few colleagues (and firms) who champion the philosophy of purposely designing the most burdensome discovery requests they can, specifically as an attrition tactic to cumulate the opponent’s costs in the case. It is that approach that is giving rise to the “out of control” discovery. The lack of real safeguards makes it possible for parties using attrition discovery to bring or defend claims without merit, based simply upon their ability to impose discovery costs in excess of the amount in controversy.
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larry
Mar 11, 2009 11:46 AM CST
Discovery is only expensive when you fight it knowing that they will get it anyway.
Just give them the darn documents and be done with it.
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Michael
Mar 12, 2009 9:46 AM CST
Computer make discovery more expensive? Hardly; the machines can pour through information a lot more quickly than paralegals or lawyers can. What’s increasing costs is that the electronic paper trail is bigger thanks mainly to email, and leaves more evidence of wrongdoing (or lack of damages), and litigants just don’t want to disclose discoverable but damaging evidence. Well - that’s exactly the purpose of discovery. Cut the nonsense, send them electronic copies of what they ask for, and move on to the merits of the case.
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Max Kennerly
Mar 13, 2009 9:29 AM CST
As I argued on my blog ( http://tinyurl.com/bf2vz5 ), their recommendations will make the problem worse, not better, but dramatically increasing the incentives and abilities of lawyers to file meritless objections to discovery, requiring the court carefully parse through every last request to see if it is “proportionate” and the like.
If they want these carrots for the defense bar, they need to include sticks as well: meaningful sanction for failures to disclose and unwarranted objections.
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