“Civil Discovery” The Great Oxymoron?

Mark E. Bale, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Published:  01.01.2018

During a recent “water cooler conversation” with a colleague, we were lamenting the common task occupying our time and efforts on that particular day.  “Discovery disputes!  Ugh!”  I’m willing to bet that most everyone reading this right now would place discovery and related disputes at or near the top of the things that they least like about civil litigation.  So, as we begin a new year, let’s make a resolution, shall we?  Let’s endeavor to maintain the civility in the civil discovery process. 

The Association of Business Trial Lawyers of San Diego has adopted a set of thoughtful and pragmatic guidelines identifying principles of conduct for lawyers engaged in litigation.  The Ethics, Professionalism and Civility Guidelines are published on the ABTL San Diego’s website at: http://www.abtl.org/sd_guidelines.htm.  During a recent refresher review of the guidelines it occurred to me how a majority of the 14 guidelines dealt either directly, or indirectly, with discovery and how adhering to those guidelines could assist us all in improving our civil discovery practices.  The relevant guidelines are set forth below with some comments for consideration:     

Select Guidelines

1.         A lawyer must work to advance the lawful and legitimate interests of his or her client. This duty does not include an obligation to act abusively or discourteously. Zealous representation of the client's interests should be carried out in a professional manner.

Comment:  The preamble to the ABTL guidelines states “[n]othing in the guidelines is intended to inhibit a lawyer’s zealous representation of his or her client’s interests.  The guidelines are, however, based on the belief that zealous representation is compatible with professional and civil conduct.”  Let us all remember that zealous client representation in contentious litigation must not cause us to compromise the professionalism, reasonableness and integrity we owe to one another and to the profession itself. 

3.         A lawyer should not behave in an offensive, derogatory or discourteous manner even when his or her client so desires. If necessary, a lawyer should advise the client that civility and courtesy are not signs of weakness.

Comment:  We have all been presented with situations in which a client’s emotional investment in the existing dispute causes the client to feel that opposing counsel is also responsible for the dispute.  Client’s may believe that they want their attorney to be ruthless.  Don’t allow the client’s emotions to control your interaction with opposing counsel.  For example, there should be no need to “put on a show” for your client during a deposition by being rude, confrontational or condescending to opposing counsel or to the adverse party.  One can be firm but still professional and very capably represent the client’s interests.  A deponent may even be more forthcoming if they are not on the defensive and feeling attacked during deposition.  Help your client recognize the virtues and benefits of such conduct.        

6.         Where all alternative manner of service would not prejudice the client's legitimate interests, a lawyer should not use the timing and manner of service to embarrass or disadvantage the party or person on whom the papers are served.

Comment:  Is it really necessary to your client’s case to personally serve written discovery on a Friday at 4:59 p.m. so as to minimize the time opposing counsel and their client have to respond?  Does it really legitimately advance your client’s interest by serving discovery so that responses are due the Monday after Thanksgiving break or January 2nd after a holiday?  We should all keep in mind how it feels to be on the other end of such a service.  

7.         A lawyer should consider opposing counsel's legitimate calendar conflicts when scheduling or postponing hearings, depositions, meeting or conferences, unless to do so would be contrary to the legitimate interests of his or her client. A lawyer should not arbitrarily or unreasonably refuse a reasonable request for an extension of time. In considering a request for an extension of time, a lawyer may appropriately take into account the interests of his or her client, whether there have been prior requests for extensions, the time required for the task, the nature of the adversary's scheduling difficulty, and whether the adversary will grant reciprocal reasonable requests.

Comment:  Unless a client will suffer actual prejudice, granting reasonable extensions of time on discovery should be the norm in my opinion.  I recently had an attorney explain to me during our first conversation on a new case that - while his practice was normally to allow professional courtesies - because of the “bad blood” between our clients I should not expect him to be able to offer such courtesies in the case.  It was disconcerting and disappointing.  The case was not even at issue yet and the tail was wagging the proverbial bulldog.   We should recommend against such tactics when suggested by our clients and educate them on the probability that they will need the courtesy of an extension at some point in the case.  

8.         Discovery is an important and appropriate litigation tool, and lawyers are expected to pursue such discovery as is appropriate in order to evaluate and establish the client's position in litigation. A lawyer should not, however, use discovery to harass opposing counsel or the opposing party or for the purpose of delaying the efficient resolution of a dispute. A lawyer should explore with opposing counsel alternatives to formal discovery that will achieve the same objective at lower cost. Lawyers should be willing to agree to mutual stipulations of genuinely undisputed facts.

Comment:  Before executing that boilerplate declaration for additional discovery, consider, is it really such a complex case with so many issues that it requires more than 35 special interrogatories or 35 requests for admission in order to evaluate your client’s position?  You are signing a declaration under penalty of perjury to that effect.  Could you stand before a judge and make a credible argument as to the necessity if challenged?  Remember, we all have a duty of candor to the court.  Is a scorched earth discovery plan really necessary? 

9.         Depositions are generally conducted by lawyers without direct judicial supervision and are frequently the most uncivil phase of litigation. A lawyer should take depositions only when actually needed to learn facts or preserve testimony, and should not engage in any conduct during a deposition that would not be appropriate in the presence of a judge.

Comment:  This guideline made me think of a recent experience I had during a deposition in a multi-party case.  During the course of a party deposition, two lawyers that I like and respect had differing views on whether a particular document, and testimony related thereto, was subject to the attorney-client privilege.  The issue was not black and white.   The attorneys firmly but respectfully stated their differing opinions on the record but were unable to reach an agreement.   The questioning attorney suggested that we take a break so he could show the attorney defending the deposition case law to support his position.  The other attorney agreed.  After considering the authority and discussing the matter further, the attorney asserting the attorney-client privilege did not concede but allowed the deposition questioning to continue, subject to a motion to strike the testimony at a later time.   The compromise allowed the deposition to be completed and avoided the need for a motion to compel and a potential second deposition of his client.  The attorneys then agreed to meet and confer further on the issue.  Rather than digging in their heels and pounding the conference table, reasonableness and civility prevailed while both attorneys effectively protected their respective clients’ interests and likely reduced litigation costs for all involved.

10.       Written discovery should be limited to seeking such information and documents that a lawyer reasonably believes are necessary for the prosecution or defense of an action. A lawyer responding to written discovery or complying with court rules requiring disclosure should not employ artificially restrictive interpretations to avoid disclosure of relevant and non-privileged information or documents.

Comment:  If written discovery requests are propounded in a civil litigation matter, the responding party and attorney certainly have a general understanding of the subject matter of the case.  It is not our job as attorneys to nit-pick language and find creative arguments to avoid providing meaningful discovery responses.  This will invariably lead to meet and confer letters or phone conferences and perhaps motions to compel or the issuance of a revised set of discovery.  At the end of the day, what was accomplished for the client other than increasing their attorney’s fees?  During testimony to a grand jury, former United States President and Yale Law School graduate Bill Clinton famously responded to an inquiry by saying “it depends on what the meaning of the word ‘is,’ is.”  No wonder there are so many lawyer jokes!  Such gamesmanship has no place in our discovery practices. 

13.       A lawyer should not seek judicial sanctions against a party or opposing counsel without first conducting a reasonable investigation and unless the lawyer is convinced that sanctions would be fully justified.

Comment:  Despite the best meet and confer efforts by attorneys, at times there are genuine good-faith discovery disputes.  Reasonable minds may differ on discovery issues and judicial intervention may be necessary to provide guidance to the parties.  However, not every discovery motion or opposition needs to include a demand for sanctions.   The Code of Civil Procedure generally mandates that sanctions be awarded to the party unsuccessfully making or opposing discovery motions, unless the unsuccessful party acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (See CCP §§ 2023.010, 2030.300, 2031.310 & 2033.290.)  Before demanding sanctions, consider whether an award of sanctions is truly warranted.  You might actually benefit in your relationship with opposing counsel and the bench by forgoing an aggressive request for sanctions, especially in circumstance where they are not likely to be awarded. 

14.       Every law firm's reputation is affected by the professional conduct of its lawyers acting in the name of the firm. Law firms should include the subject of professional and civil conduct in their programs for the training of new lawyers and legal education. Law firms should also identify a lawyer within the litigation practice group to whom questions regarding compliance with these guidelines (either by an attorney in the firm or by opposing counsel) may be addressed.

Comment:  As lawyers, we and our profession will all be better served by consistently reminding one another, through our actions, of the ethics, civility, and professionalism that should define the legal profession.  Then those water cooler conversations can turn to something more pleasant like the big game or that great new restaurant or maybe even how much you are enjoying working with a particular attorney on a case.  

Happy New Year!  And remember our resolution to maintain the “civil” in our civil discovery practices.