Monday, October 10, 2005

Trial by Discovery Gotcha . . .

Here's the report. Famous, politically-connected attorney David Boies (remember Clinton and Gore?) is a member of a firm which uses a document management company to deal with providing responses to discovery requests to produce documents. In an odd twist of fate, the document company happens to be owned by several of Boies' children.

His firm is defending a client obliged to respond to a discovery request to produce documents, and in a sad coincidence, his children's document production company was retained to send the response.

The response to the request to produce documents consisted of seventy-seven million pages of documents produced, with a bill in the millions of dollars.

Now the plaintiff is highly perturbed-off, complaining that the bill is too high and that in that many documents nobody could tell what is important or not. (There's a needle in that haystack somewhere.)

Betcha I know what happened. Plaintiff's counsel was probably responding to an excessive document request by the defense - a usual defense tactic - and sent a grand and all-encompassing retaliatory document request of his own.

The defense now smugly points out that they merely produced a complete response to what was requested and one could of course locate pertinent documents with a data base search. (Put a magnet into that haystack.) But that presupposes that plaintiff can formulate the appropriate search words and phrases. And if plaintiff could do that, don't you think they could have formulated a more pointed discovery request in the first place?

As one who has responded to discovery requests, it's kinda fun to laugh at attorneys who now are punished by having to choke down what they asked for in an their over-broad discovery request. The use of excessive and overbroad discovery requests, is, in my mind, an all too frequent violation of the spirit of discovery, encouraged by judges who are consistently reluctant to rein in some attorneys. I still remember the time (insert a little George Bush type cackle here) when an attorney called me to complain loudly that my document requests were excessive and out of line. It got real quiet on the other end of the telephone when I told him that my request to produce was a copy, with only a few changes, of the request for production he himself had sent me the week before. He said his paralegal did it.

But attorneys of this caliber certainly know when a request to produce is excessive and when you have to produce 77 million pages, that's a real good hint. What you do in a case like that, is go file a motion. You don't provide 77 million pages and a $4 million dollar bill, which, when paid, will go to the named partner's children. You don't do that, that is, if you have any interest in resolving the case on the basis of the facts and the law.

On the other hand, one of the widely practiced trial strategies has become, "Starve the bastards out." That means you keep the other attorney, and your own, real busy cranking out billable hours. The client least able to afford this game frequently caves in. And it comes as no surprise that modern litigation overwhelmingly favors the wealthy party who can afford extensive discovery whomped up by attorneys who get paid for every whomping. A side benefit is that attorneys who are not particularly distinguished by brainpower as compared to the general run of the profession, get reputations as effective litigators mostly because their clients are wealthy and can afford to pay for excesses when the other side cannot. Of course, if questioned about the proprieties, such attorneys protest that they are merely doing their jobs as effective litigators. (A particularly nasty wrinkle in this scenario is the case of the class action plaintiff's attorney, who gets the other side to pay for both sides of the excessive discovery activity -- or enter into an agreed settlement.)

Attorneys of this ilk never appear nearly as effective, when opposed by attorneys of the self-same ilk. (Haven't used the word "ilk" in some time.) What results is that the attorneys on both sides end up revealing that they are small-minded and nasty little creatures who should have been smacked more as children.

And in some cases, such as this one, the smacking of both sides should go on into adulthood.

And when it comes to smacking small-minded, nasty little attorneys, one must confess to a slight pang that nobody ever invited me to be an Article III judge.

Ah, well. Life is still good.

1 comment:

tony said...

Ilk is a good word, Walt. It's fitting and doesn't merit the insertian of a "leftist spelling error."

I felt like you had my back on that one. Thanks.