'Trust Me' Versus Transparency in Civil Document Discovery
11 Pages Posted: 5 Jun 2019 Last revised: 6 Jun 2019
Date Written: June 2019
Civil document discovery is so routine for lawyers that most take for granted the central inefficiency in the process: opposing counsel. If a lawyer could simply walk into the opposing party’s office or home and collect the documents (paper or electronic) that the lawyer deems relevant to the issues in a case, that would be a simple and cost-effective way to discover the facts of the case.
But that is not how civil document discovery works. Each party (or more accurately, its attorney) is the gatekeeper of its own information. This gatekeeping function prevents an opposing party from rifling through a party’s irrelevant and privileged information. But it also means substantially more effort and cost for both sides. The party seeking information must provide written requests, seeking the production of documents relevant to the dispute. The requesting party must then rely upon the responding attorney to: (1) ensure that the appropriate information is preserved; (2) collect, process, and review the necessary information to determine the documents responsive to the request; (3) object to any aspect of a request that is improper (such as because it seeks discovery of privileged, irrelevant, or disproportionately burdensome information), and (4) produce the responsive (but not objectionable) documents.
In short, the quality of civil document discovery depends upon the responding attorney. The requesting attorney will receive the documents she is entitled to only if the responding attorney is competent at document discovery, complies with discovery obligations under the FRCP, professional conduct rules, and other sources of law, and acts in good faith.
In the ediscovery era—of large volumes of information that is easily changed or deleted and stored in diverse locations—case law reveals there are often problems with opposing counsel’s competence, compliance with rules and other legal obligations (referred to collectively as “rule compliance”), and good faith. In some cases, producing attorneys do not properly guide their clients in the preservation of documents, resulting in spoliation of evidence. In others, the attorney fails to collect and review the right categories of information, resulting in responsive documents not being produced. Case law reveals that producing attorneys sometimes withhold discoverable documents relying upon baseless, misleading, or otherwise improper objections.
Whether the cause of these discovery problems is incompetence, a lack of rule compliance, or a sinister motive, the “trust me” tradition of document discovery contributes to the problem.
Keywords: discovery, ethics, professional responsibility, behavioral legal ethics, civil procedure
JEL Classification: k41, k40
Suggested Citation: Suggested Citation