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Rethinking Our Approach to Discovery Benefits Our Clients and Our Practices

On Behalf of | Feb 1, 2020 | General

Last week, Katie and I recorded a webinar for attorneys called, “Breaking Bad Discovery Habits.” We contrasted typical attorney behavior that we’ve all seen, and, sadly, that we’ve all done to some degree, with how discovery is actually supposed to work. There is a remarkable disparity between the purpose of discovery as articulated in the statutes and case law versus how discovery is actually handled in attorney offices across the country. Katie and I have found that over 90% of the discovery responses that we receive expose the signing attorney to severe sanctions. For us, this means we are not getting responsive discovery for our clients, and litigation bogs down or comes to a halt while we try to extract basic information from the other side. Game-playing and paper-pushing does not advance a client’s cause, nor does it help anyone prepare for trial. When we communicate with the other attorney, we always share some of the case law and statutes that made it into the “Breaking Bad Discovery Habits” materials. To our surprise, sharing the information that helped us reconsider our responsibilities and approach to discovery has not at all helped encourage other attorneys to repair their obstructive responses. Instead, we receive heated attacks and reactions, including: “I’ve been practicing longer than you,” “So, you’re saying every attorney is doing discovery wrong?” “I don’t think parties can agree to change the discovery time frames in the statutes,” and, shockingly,  “I disagree with all of those federal judges!”

At our law firm, the following excerpts from case law, one from Oklahoma and one from a federal opinion, shape our philosophy for discovery:

Civil trials no longer are to be conducted in the dark. Discovery, consistent with recognized privileges, provides for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir.1978). “The aim of these liberal discovery rules is to `make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'” Id. State ex rel. Prot. Health Services v. Bfc, 158 P.3d 484, 489, 2007 OK CIV APP 24, ¶ 17

One of the purposes of the discovery rules in general, and the deposition rules in particular, is to elicit the facts of a case before trial. Another purpose is to even the playing field somewhat by allowing all parties access to the same information, thereby tending to prevent trial by surprise. Hall v. Clifton Precision, 150 F.R.D. 525, 528 E.D.Pa. 1993).

I will write about evidentiary disclosures in a separate post, but the concepts are related. We are not afraid of showing the other side our evidence early, very early in the case. In fact, we use discovery to lay groundwork and a preliminary foundation for our evidence to be received into evidence at trial. We use discovery to lay groundwork for the other side to have to acknowledge it as true and real for settlement negotiations and for use in mediation.

A few years ago, I heard a story about a case involving Jim Frasier in Tulsa. The defense sent him discovery requests. The plaintiff’s discovery responses included document production, and every document was organized and had an exhibit sticker on it. It was clear that Mr. Frasier, a terrific trial lawyer, was completely prepared to try the lawsuit before discovery had even been issued. When I heard that, it became a challenge and goal for me for every case.

Here are some takeaways for consideration:

1. Absent a true blue, legitimate privilege or work product claim, they (the other side) are entitled to the information, and you and your client are going to have to give it to them. If it is very expensive to produce, then talk to them about paying or sharing that cost.

2. Boilerplate, copy-and-paste instructions and objections are 100% useless. They have no value at all.  Teaser objections, which are an objection followed by “without waiving said objection, I’ll give you a little taste,” are worthless. If you have a valid objection, it should be specific, detailed and fact-based so the judge can understand by reading the objection exactly what the issue is.

3. Most of the issues we encounter in discovery can be resolved with careful thought and communication. A discovery protective order that is tailored to address the issues in a case and is not slanted to give either side a strategic advantage can promote the free exchange of information while making each side feel good about addressing their particular concerns. For more about this, check out Steve Susman’s Trial By Agreement