Friday, February 24, 2017

Reforming civil discovery – Part 4 – one more post on zero-based discovery

For Part 1 of this four-part series, click here.

With zero-based discovery, no discovery would be permitted to any party unless and until the court first reviews and approves the specific discovery sought.

This is similar to the way things worked in Lincoln’s day. A well-funded party would file its law action – and then file a separate chancery action, a bill of discovery, in order to obtain the discovery needed for their law case. We don’t need a separate suit to authorize discovery in the modern age, the distinction between courts of law and courts of equity having been abolished. But, if we are serious about reducing the cost of civil litigation and thereby securing access to the civil justice system for more than just the one-percenters, we do need a gatekeeper. A vigilant, skeptical gatekeeper.

Granted, while the existing discovery rules would not have to be totally rewritten to accommodate zero-based discovery, there would be some adjustments made by the bench and bar in order for the system to work.

So what?

Change is the only constant of modern life.

But, most of the time, ‘change’ means adding onto, not substituting one thing for another.

In my 37 years in practice, we’ve gone from IBM Selectrics to personal computers to laptops to tablets and smartphones.

We now have ‘phones’ which we use mostly to text or email people we might have, at one time, called.

On a phone.

I have been in practice so long that I can recall a time when the word ‘cloud’ referred principally to a visible mass of condensed water vapor in the sky.

In the course of my career, the rise of word processors and, later, PCs led directly to the ubiquitous use of form interrogatories. I refer not to the ‘form’ interrogatories now included in the comments to Supreme Court Rule 213 but, rather, to the form interrogatories that lawyers developed (or appropriated) for their own use – including, of course, the multi-page ‘definitions and instructions’ that some sadistic misanthrope inflicted on the rest of us a generation ago. We started using form discovery because it had become easy to do so. (Can you imagine someone having to retype those ‘definitions and instructions’ on a Selectric every time these were to be dropped on some unsuspecting opponent?)

In our modern, high-tech culture we often do things because we can, without giving a second thought to whether we should. The most widely cited example of this phenomenon has been the making of the second Star Wars trilogy, but this concept applies to civil discovery as well.

Photocopying made it possible to obtain large quantities of documents. So we started insisting on the production of large quantities of documents. Then digital technology made it possible to share enormous quantities of documents. So we began demanding these as well.

With zero-based discovery, we can step back and consider not just what we can do, but whether we should do it in the first place.

Lawyers will still be able to prepare cases, and settle cases, and try cases with zero-based discovery. But the best lawyer can’t do any of these things without clients. And potential clients can’t become clients unless they can afford representation.

We say we want ‘access to justice’ for civil litigants. In civil cases, meaningful access does not mean only that litigants can appear in court. Unrepresented parties can too easily ruin meritorious cases because they don’t understand either the applicable law or procedure. No matter how we streamline our court system, lawyers who regularly appear in a courtroom will have a decided advantage over pro se litigants who are involved in only one case. Access to justice for these litigants should involve access to lawyers, too. By drastically restraining discovery, perhaps many litigants will ‘discover’ that they can afford representation.

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