Reforming civil discovery – Part 2 – preserve the civil justice system by adopting zero-based discovery

For Part 1 of this series, click here.

There seems to be a misunderstanding among lawyers generally and courts in particular that, unless forced to do so, a lawyer in a civil case will never disclose a single scrap of information.

And yet we know that we don’t behave that way. Judges didn’t behave that way when they were in practice either (just ask one).

And we also know that most—the overwhelming majority of—civil cases are disposed of without trial.

And, finally, we also know that a great many cases are settled without suit ever being filed.

Cases settle without suit because lots of information is voluntarily disclosed. Plaintiffs’ attorneys carefully gather together their clients’ medical records and lost-time records and helpful scene photographs and bundle them together in a ‘package’ designed to make the adjuster requisition adequate authority. The damning documents are carefully arranged and an explanatory letter is sent in an effort to make the other party to the contract realize the consequence of his or her breach. It doesn’t take a 213(f)(3) disclosure schedule to get the property owner to share the engineering report that clearly shows that the concrete was improperly mixed and that this caused the damage to the structure. These disclosures are willingly made in order to resolve cases at the earliest possible opportunity.

In other words, we really are very eager to disclose information that helps us... it’s just information that might hurt our cause that we try to keep hidden. (Human nature again.)

But, in our hyper-connected, over-sharing age, a lot of stuff that clients might not want to reveal, if they thought about it, is already ‘out’ before their lawyers are brought ‘in.’

Even if some damaging stuff sometimes remains buried during pre-suit investigation, cases don’t typically arrive in court without both sides already knowing quite a bit, good and bad, about the controversy.

Why does it automatically make sense to recreate all the information obtained or exchanged pre-suit?

In a great many cases—especially in our hyper-connected, over-sharing world—a lot of information damaging to our opponent is already known by third parties. Military Strategy 101 teaches that a good flanking maneuver is less costly than a frontal assault on a fortified position. Why do lawyers spend so much time, and so much client money, making frontal assaults on their opponents, demanding that they reveal damaging stuff that could be far more easily obtained from others?

The concept of “complete” or “full” discovery may sound appealing to law school professors, but the costs attendant thereto has made our civil court system too expensive a forum for too many – and, yet, there’s no viable alternative available. (Arbitration? Don’t get me started: Discovery is corrupting arbitration practice, too, and where one side is purchasing the arbitrator, as is now the case in mega-company vs. consumer arbitration, just exactly how fair can that system be?)

What we should do instead is abandon the idea of automatic discovery and move to a zero-based discovery system. This is not as inconsistent with our existing rules as you might initially think. Consider, for example, Supreme Court Rule 218(a), which already provides that “the following shall be considered” at an initial case management conference:

(1) the nature, issues, and complexity of the case;

(2) the simplification of the issues;

(3) amendments to the pleadings;

(4) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(5) limitations on discovery including:

(i) the number and duration of depositions which may be taken;

(ii) the area of expertise and the number of expert witnesses who may be called; and

(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions;

(6) the possibility of settlement and scheduling of a settlement conference;

(7) the advisability of alternative dispute resolution;

(8) the date on which the case should be ready for trial;

(9) the advisability of holding subsequent case management conferences; and

(10) any other matters which may aid in the disposition of the action including but not limited to issues involving electronically stored information and preservation.”

Rules 218(a)(4), (5), and (10) specifically invite a trial court’s early and direct involvement in discovery issues. But rather than asking whether ‘form’ interrogatories have been unthinkingly propounded, or whether the depositions of all parties have been scheduled, whether needed or not, I suggest that we ask courts to presume that no discovery whatsoever is necessary in any case. I call this ‘zero-based discovery.’

With zero-based discovery the burden would be imposed on any party who wants it to persuade the court as to what discovery is necessary, and why. The court becomes the gatekeeper, tasked with evaluating whether the requested discovery is really necessary to get a case ready for trial – or positioned for settlement – or whether the discovery being sought is instead intended as a means to wear down or harass the other side. The court’s active involvement at this juncture should stop a ‘fishing expedition’ before it leaves port. The court’s control of the conduct of discovery from the outset would protect the uninsured or underfunded party against the use of discovery by a well-funded opponent as a means to bleed and bludgeon it into an unfair settlement or, worse, default or nonsuit.

With a zero-based discovery, human nature works with the system, instead of against it: When the judge becomes obliged to 'deal with' discovery issues, he or she, consistent with his or her understandable disdain for discovery issues, will want to minimize discovery, to focus it on just that which is essential.

The new assumption would be that, without a court-specified and court-monitored discovery schedule, carefully tailored to meet the specific needs of each case, a case would be ready for trial just as soon as issue was joined. This would not prevent the parties from attempting to resolve their differences, either with the court’s assistance in a pre-trial, or through mediation (again, as Rule 218(a) already provides). But, without unfettered, automatic discovery, the cost of litigation would be reduced, perhaps drastically, bringing the court system—and the services of lawyers—once again within the reach of middle class people and small businesses. That alone might curb the surge in pro se litigation.

Meanwhile, equally well-funded parties could still try and discover each other to death (if equally well-financed parties are determined to wage a discovery war of attrition, the wise trial judge will gladly let them). But the civil court system can still be preserved as a viable dispute resolution forum for the rest of us.

To be continued.