The Need for Art and Surgery in Discovery

Guest Blog by Shannon Capone Kirk and Kristin Ali*

Dylan

You always said people don’t do what they believe in,
they just do what’s most convenient, then they repent.
And I always said, “Hang on to me, baby, and let’s hope
that the roof stays on.”

Bob Dylan, Brownsville Girl

ART

Not every musician, in fact not one that I can think of, writes lyrics so full of art and poetry as the master himself, Bob Dylan. This does not mean, however, that they shouldn’t try. They should try real hard. Lest we be left with such trite and repetitious, dare I say, overly broad and unduly burdensome, lyrics such as I do, I do, I do, I do, I do. No offense to you Abba fans out there, but I think we can at least agree that there is a smidge more art in any Dylan song than in I do x 5.

While the occasional ABBA song is out there, many musicians pride themselves on creativity—going where no musician has gone before in lyrics and sound. Lawyers, however, fail to do the same when it comes to discovery. It seems that we are still in the same tug-of-war we’ve always been in, the issuance and receipt of vague, repetitious, overly broad, and unduly burdensome interrogatories and document requests and the boilerplate, although often justified and valid, objections. Is it that lawyers want to do what’s most convenient and then repent?

In other words, is it more convenient to issue repetitious, overly broad, and unduly burdensome shotgun interrogatories and document requests to avoid the thought, the creativity, the precision required to ask for what is needed? Are these repetitious, overly broad, and unduly burdensome discovery requests safe in the comfort that no sanctions will come out of their mere existence? Is it that counsel are free to repent their convenience by later reducing the scope and number of previous discovery requests? But, what good does that do anyone? Does this tactic not add delay and expense on what is likely an already expensive endeavor? Is it the fear that not being repetitious, overly broad, and unduly burdensome will mean that counsel neglected to ask for that one teeny tiny little scrap of data in an unused file folder on some tangential witness’s old and unused laptop? But is the cost of such expansive discovery for that minutia scrap of data really worth, really proportionate, with the needs of the case? If not, it’s ok to think about the case, be creative, figure out what’s truly needed, and inquire and request accordingly. Come on, its okay…hang on to me baby, and lets hope that the roof stays on.

There are certainly appropriate occasions for numerous interrogatories and document requests. For example, they may be appropriate in large money cases, involving complicated claims or numerous parties. However, in most civil litigation, there is usually a core set of issues and facts. Yet, interrogatories and document requests continue to mutate in scope and multiply in number like giant monster rabbits left alone and to their own devices in an unguarded carrot field.

fat rabbitMeet the fat rabbit, Unduly Burdensome

I know not all lawyers are poets, or actors, or musicians, or writers (although I’ve met a couple who are pretty darn entertaining). But I do think that some creativity, some thought could be given in lieu of unthoughtful, repetitious, overly broad, and unduly burdensome shotgun interrogatory and document requests. After all, repetitive, overly broad, and unduly burdensome discovery requests only lead to repetitious and boilerplate objections and no one getting anywhere except preserving a ton of ESI and incurring loads of angst for fear of spoliation. The problem is that even though Rule 26 requires pre-discovery meet & confers, and even though great cases like Mancia vs. Mayflower shed great light on the requirements of Rule 26, parties still issue repetitious, overly broad, and unduly burdensome discovery requests—and in most cases, those requests come after the alleged meet & confer and the possible Rule 16 conference and thus, after the time when parameters for preservation and discovery were supposedly set.

Here are some exemplars of some post-Rule 26 meet & confer discovery requests. You can imagine that these particular exemplars were repeated over and over and went on, and on, and on……. into the hundreds. The creativity in massaging a word here and there to make the requests seem less repetitious than they obviously were could have been spent on being more creative and precise in seeking what was really needed.

1. All DOCUMENTS concerning Corporation A’s stock price.

Lawyer’s secret thought: <Really? All? When? Which stock price? The price of the stock is not even debated. The price is the price is the price. What is it that you really want to know? And do I need advise the client to preserve every single possible thing related to “stock price” until we sort this out? When will that be?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

2. All DOCUMENTS concerning any consideration of acquisitions of any other businesses.

Lawyer’s secret thought: <Really? All? When? What do you mean by “any consideration”? Do you mean consideration as in the “contractual” consideration? Do you mean consideration as in any time anyone ever thought, even on a whim, “hey maybe I might want to acquire such and such a business someday?” And how would that ever be relevant to this case, which has nothing to do with any other acquisitions on this planet? Especially not ones that might have been “considered” or “pondered”, whatever you mean, in some remote past? Also, what do you mean by “acquisitions?” And, really “any” other business.? We’re talking about two businesses in this case, plaintiff’s and defendant’s. What is it that you really want to know? More importantly, what parameters are necessary for preservation and how much will that cost my client?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

3. All DOCUMENTS concerning forecasting the need to purchase any possible acquisitions.

Lawyer’s secret thought: <Huh?>

Lawyer’s actual response: Objection.  Request is vague, repetitious, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible evidence.

Although Ralph has written of Mancia v. Mayflower in the past year and the case has received quite a bit of press in the E-Discovery world, it does deserve mentioning again. In Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), Judge Grimm criticized the practice of dumping document requests on the other side, noting the reality that “lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary.” On the flip side, he condemned the practice of boilerplate objections to document requests, explaining that:

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry and discovered facts that demonstrated the burdensomeness of excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity on pain of waiver.

Judge Grimm makes clear that boilerplate objections are most definitely a no-no. And, Judge Shira Scheindlin of the Southern District of New York seems to agree, as she cites Mancia in an opinion of hers from early this year: S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y. 2009).

Yet, there is no thought, no art to the above exemplar requests and they unfortunately scream for “boilerplate” objections. I know what the song Brownsville Girl is about, the lyrics tell the exact story, precise and thoughtful. I do, I do, I do, I do, I do not know what the above requests are asking for or how the reader is supposed to respond. What I do know, however, is that these requests are the type of requests that have made E-Discovery so expensive—they are so broad and vague that an ocean’s wide net might have to be cast over the client’s documents and data in order to preserve, collect, cull, and on and on, “All” of the potentially responsive information. Of course, that is if the parties are unable to meet and confer and set realistic goals and parameters, which unfortunately is not as easy or routine as it should be.

SURGERY

The repetitious, overly broad, and unduly burdensome brand of discovery is the type of discovery frowned upon in the Final Report of the Joint Project of The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System (“Joint Project”). The report laments that “unfortunately, many lawyers believe they should—or must—take advantage of the full range of discovery options offered by the rules. They believe that zealous advocacy (or fear of malpractice claims) demands no less.” The Joint Project calls for a reform of the discovery process so that it actually achieves the goals of discovery. “Discovery should enable a party to procure in admissible form through the most efficient, nonredundant, cost-effective method reasonably available, evidence directly relevant to the claims and defenses asserted in the pleadings. Discovery should not be an end in itself; it should be merely a means of facilitating a just, efficient and inexpensive resolution of disputes.”

As the rules currently stand, they allow for discovery to run wild. The Joint Report quotes one respondent saying: “the new rules are a nightmare.  The bigger the case the more the abuse and the bigger the nightmare.”

So what’s an attorney to do when faced with a slew of vague, overbroad, duplicative or irrelevant requests? Providing rational and targeted responses, as called for in Mancia, is certainly in keeping with the cooperative spirit of discovery. Being surgical in request and response should also be considered.

Banning the overly broad and the boilerplate, as called for in Mancia, is a good start to streamlining the discovery process. But it needs to be more than an aspirational goal; it should be enforced. Prior to Mancia, Federal Rule of Civil Procedure 26(g) already required that every discovery request, response or objection be signed by an attorney of record, certifying that it is, among other things, not unreasonable or unduly burdensome or expensive considering the case. Judge Grimm explains the intention of Rule 26(g) in Mancia:

First, the rule is intended to impose an “affirmative duty” on counsel to behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent “with the spirit and purposes” of the discovery rules, which are contained in Rules 26 through 37.

Second, the rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated, absent “substantial justification,” and those sanctions are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance.

Most importantly,

Third, the rule aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party. Despite the requirements of the rule, however, the reality appears to be that with respect to certain discovery, principally interrogatories and document product requests, lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial.

To Judge Grimm, the appropriate way to deal with redundant and burdensome discovery requests from plaintiffs is not to respond with boilerplate, but for both sides to stop abusive practices by using the meet and confer system to cooperate.

If lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost – to all parties – is proportional to what is at stake in the litigation.

And, here is the surgery of discovery. To me, Judge Grimm is asking the parties to take out their scalpels and perform surgery on the beast of discovery before them.

Gorilla Surgery

Meeting and conferring can be helped along with actively involved judges who manage discovery. It is this kind of judicial enforcement that the Joint Project calls for. One of its main recommendations is to increase the involvement of judges from day one: “Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. … Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

After all, a good surgical team meets and preps before surgery to get a good and efficient game-plan together before cutting the patient open. Or, would it be better for the surgeons not to meet, cut the patient open, then fight over which kidney to cut out, and decide to just cut out both kidneys to avoid leaving the wrong one in?

Perhaps further surgical parameters can be set by imposing a maximum number of discovery requests. For the most part, parties have few restrictions on the amount of discovery requests they can make. The rules generally favor liberal discovery and do not impose numerical limits on the amount of overall discovery a party may request. Of course, courts can impose reasonableness standards on requests when they are in dispute, but overall the result is that parties can frequently make repetitive, overly broad, and unduly burdensome requests on their opponents with few limitations or repercussions.

Some jurisdictions have limited discovery. California, for example, has created two classes of civil cases with two different sets of discovery rules, limiting discovery in lower-stake cases, as a way to create a more proportionate system of discovery to the amount in controversy. The Southern and Eastern Districts of New York have imposed strict definitions on certain broad words used in a discovery request.  For example, words like “document” and the modifiers “any” and “all” each have specific definitions in the context of the local rules. Rule 26.3 establishes the maximum breadth that those terms may have. Some courts have limited interrogatories – Illinois state courts have a limit of 30, and the District of Massachusetts and the Southern District of California have limits of 25.

Perhaps, then, numerical limitations on document requests are part of the surgery necessary to curb discovery abuses. It is difficult, however, to pin down a number. Numerical limits might restrict parties from getting the correct information and prevent meritorious cases from being properly litigated. Numerical limits might also encourage creative accounting – putting multiple requests within a single request or lead to even more jumbled and inarticulate discovery requests. Yet, I’ve practiced in Illinois and I can recall working to fit my requests into the 30 interrogatory limit. Truth is, when it came down to it, in most cases, it wasn’t that hard. Numerical limits are not easy, but they are doable. We should look more to the state courts to see the lessons learned from their experience.

All in all, Dylan, I hope, sets a good high bar to try real hard to reach by way of creativity and thoughtfulness, Judge Grimm provides the idea that lawyers should be more surgical and cooperative, the Joint Project supports judicial enforcement and limits on discovery, and state courts provide examples of numerical and other discovery limitations. All of which all together could make for a good road to follow in curbing discovery abuse.

But to conclude, since I don’t foresee being before him anytime soon, I hope Judge Grimm takes it as a compliment that I’ve put him and Dylan in the same sentence. But, sorry Judge Grimm, although you can write one mean-old, artful, ballad of an opinion, I don’t know if I’d love paying every red cent of $500.00 to see you in concert, like I would to hear Brownsville Girl live.

*Shannon Capone Kirk is E-Discovery Counsel at Ropes & Gray. Kristin Ali is an associate in Ropes & Gray’s litigation department. This guest article encompasses their personal observations and opinions and does not necessarily reflect those of Ropes & Gray and its attorneys or clients.


2 Responses to The Need for Art and Surgery in Discovery

  1. Craig Ball says:

    I saw Dylan live not long ago here in Austin. The years have not been kind. Buy the recordings, but keep the memories good and eschew the stage.

    Like

  2. Akku says:

    wonderful article.. thanks for posting

    Like

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