By Robert Chapski
Over my career, there are a number of events that stick out in my mind. You wouldn't think a discovery-related event would be one of them, but I recall vividly years ago being sent across the state on a fool's errand to defend a motion to compel. The long and short of it is that the opposing party requested a bunch of stuff, and we refused to produce any of it. We tried to work it out in advance of the hearing, but the other lawyer ignored our letters and phone calls. So it goes. Thus, as a hapless, young, eager associate, I did my duty and drove three hours to defend the motion to compel filed against our client. I'll spare you the details. It didn't go well. It didn't help my cause that one of the opposing lawyers was also a local, sitting judge. (I'm still not sure how that works.) In my eagerness, I also managed to interrupt the judge while he was basically giving the opposing lawyer everything he asked for in discovery. He wasn't won over by my zealousness. It wasn't pretty, but I narrowly escaped town without sanctions at least.
I came to learn the hard way a few things from that event:
First, judges absolutely hate discovery hearings. This judge hated it and just about every other one I have appeared in front of hates them. And, if you think about it, it's not that surprising. The judge rightly expects parties to be reasonable and to resolve in good faith discovery disputes on their own. Where compromise does not prevail, a judge is forced to rule on a fight between two lawyers and their clients about the details of interrogatories and requests for production. Most of the time, the judge has never seen the documents, may not yet fully understand the context of the whole case to know what is relevant, and is forced to make an educated judgment call. Yuck. Not much is advanced in the way of justice that day. A waste of time. So, take the fact that a judge hates discovery hearings to begin with and then compound it with a position from a lawyer that appears unreasonable, and you have a tough road ahead of you, my friend.
The second, and main thing, I learned was that the best thing to do in discovery is to do what would appear reasonable if you were the ruling judge. I'm not saying "give in to everything" but pick your battles. What do you really care about? I ask you: does it seem reasonable to object to every single interrogatory and request with the following statement: "[Defendant/plaintiff] objects on the basis that the request is vague, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence and seeks information that is or may be subject to the attorney client and work product privileges"? Um, probably not. Think about the responses. What are the real objections (if any)?
Sure, discovery is not fun, but many cases are won or lost during the discovery phase, particularly if you give the other party a lot of leverage by raising the ire of the trial judge early on in the lawsuit. Think, what would I do with this motion if I were the judge? Be reasonable.