Discovery Czar 2004

DISCOVERY DISPUTES:

HOW TO RUN THE RAILROAD WITHOUT RAILROADING ANYBODY

(An open letter to trial judges)

Over the approximately 75 years since the legal system moved from “trial by ambush” to an ever-expanding scope of pretrial information exchange, lawyers have complained about the way judges handle discovery disputes, with inconsistency of outcomes as the major problem. With infrequent exceptions, the problem stems not from flawed judges, but rather from the fact that too many judges are being asked to make highly discretionary decisions.

As demonstrated below, it is natural that different decision-makers will have different views, just as in baseball the strike zone may vary as seen by different umpires. But one umpire calls many balls and strikes over the course of the game; the players can adapt. What would happen if a different umpire called every pitch? Right now in Maricopa County (where 99% of my practice is) some judges will grant motions that other judges will impose sanctions on a lawyer for filing. This situation is schizophrenogenic; i.e., it makes us all crazy.

This article will be divided into two major sections. The first will address what lawyers want (at least what this lawyer wants) from judges and suggest some specific approaches for judges to use handling discovery disputes. The second will advocate a method of increasing the predictability of outcomes in discovery disputes, a method which has been successful in other jurisdictions: the “Discovery Czar.”

I. WHAT LAWYERS WANT (AND NEED) FROM TRIAL JUDGES.

As noted above and discussed in more detail below, the most important thing is consistency; the ability to predict outcomes. The next thing that lawyers want in a discovery dispute is to not be sneered at by the trial judge because the lawyers could not work out the dispute without involving the court. We don’t ask professional athletes to call their own fouls or out-of-bounds; in a lawsuit even finding the boundary line can be subject to dispute, let alone who crossed it. Lawyers need judges to be referees. It is no less an essential part of a judge’s job to call the fouls and out-of-bounds than it is to rule on issues of substantive law.

Judges should encourage lawyers to contact the court early and informally when discovery disputes are at their inception. Early intervention by the court in a positive fashion can often prevent little tangles from becoming Gordian knots. On the other hand, if lawyers are either afraid to seek a ruling or believe the court will not enforce the rules, they may engage in self-help which may itself violate the rules.

Lawyers also need judges to be sensitive to the context in which disputes arise. Many areas of privilege or procedure are subject to debate and good lawyers should debate them, regardless of their willingness to be gracious and cooperative with opposing counsel. On the other hand some lawyers persist in believing that rules are for others to follow, and that any behavior which is not frankly criminal that helps the client’s case is acceptable. Finally, some events are mere mistakes that do not warrant sanctions, even if there is no good excuse for the conduct. Injustice will often occur if the judge uses the same approach for all discovery disputes. The difficult (and sometimes impossible) challenge for the judge is to decide which category fits a particular dispute.

Lawyers need judges to reward good behavior and punish bad behavior for the system to function. However, it is sometimes impossible for the judge to confidently (and accurately!) categorize the situation. Even judges who were experienced litigators before joining the bench may be unable to confidently distinguish a legitimate “oops” from a sneaky strategy. Obviously, the stronger sanctions should be avoided unless the judge’s confidence in assessing the situation is high. The following is a partial list of questions a judge should consider before ruling on a discovery dispute:

1. Does the documentation before the court demonstrate that the lawyers have tried to work things out? What does the exchange of correspondence between counsel show? If there is a substantive issue of law involved, little back-and-forth between counsel is needed before the assistance of the court is invoked. On the other hand, if the issue is that one side is refusing to produce information, the pre-motion communication becomes more important. Has the aggrieved party sent reminder letters? Has the offending party ignored the requests or has there been a promise of compliance? If compliance has been promised, has the promise been kept?

Whether by foot-dragging or stonewalling, a common abuse of the rules is to delay disclosure as long as possible in the case for various reasons. If the information is something which the lawyer wishes to affirmatively use, delaying its disclosure limits the adversary’s opportunity to effectively respond to it. If the information damages the lawyer’s case, one may hope that the opponent will either forget about it or just get tired of asking for it and it may never come to light, or, once again, it may come to light so late that the opportunity to utilize it is limited. This pattern of delay can have serious consequences for the opponent if allowed to go unchecked, and should be dealt with swiftly when recognized.

2. Is there evidence of deception or unjustified concealment ? This question most often arises in the context of a lawyer’s failure to disclose material damaging to her case. The December 1, 1996, amendments to the disclosure rules specifically provide that “A party’s or attorney’s knowing failure to timely disclose damaging or unfavorable information shall be grounds for imposition of serious sanctions in the court’s discretion up to and including dismissal of the claim or defense.” This language is now at Rule 37(d) since the March 31, 1997 amendments.

Notwithstanding the importance of the obligation to disclose harmful information, common sense teaches us to expect that an advocate will naturally be more creative in trying to advance her own case than in poking holes in it. Although some violations are obvious (e.g., failing to disclose the existence of verbatim eye witness statements), some clearly relevant items are not so obvious, and sanctions probably should not be imposed unless there has been a request/reminder to produce such items and a refusal to do so. For example, defense counsel may not have considered every possible source of documentary evidence to find out if there have been prior similar incidents, or may not have considered the potential relevance of the personnel/training files of the involved employees. By the same token, the plaintiff may not have considered the records of the prior family doctor or health insurance company as relevant in an injury case unless prodded by defense counsel. In the absence of obvious evidence of intentional misconduct, these situations require the judge to examine the pre-motion communications between counsel to determine whether conduct deserves a sanction beyond an order of production, and if so, the nature of such sanction.

3. Who are the advocates involved in the dispute? What is their reputation for compliance with the rules? If someone who is known to be an abuser of the system gets the same benefit of the doubt as someone who is known for compliance with the rules, respect for the system will suffer. Judges have a limited amount of time and resources to devote to investigating discovery disputes. The lawyer’s reputation may be the clearest guidepost to decision-making in many cases. Although in a criminal case a defendant’s due process rights will usually entitle her to have her conduct judged without reference to prior misconduct, lawyers as officers of the court should not be entitled to the same “clean slate” in the decision of discovery disputes. [Of course, due process does require an evidentiary hearing before imposing sanctions which are the functional equivalent of striking a party’s complaint or answer. Lesser sanctions do not require such a hearing, although the party’s case may be impacted by them. Montgomery Ward v. Superior Court (Garcia), 863 P.2d 911, 176 Ariz. 619 (App. 1993).]

4. Does the party’s disclosure “tell the story”? A laundry list of facts may take up a lot of paper, but disclose nothing. In a medical malpractice case, three pages of facts taken out of the medical records may be meaningless without explanation of the significance of these facts: Why was the standard of care met or not met, and why did the alleged errors cause or not cause the plaintiff’s damages? On the other hand, in an intersection collision case, the significance of the facts may be obvious enough that no explanation is necessary. Under all the circumstances, does the disclosure give reasonable warning of how the party will tell their story at trial.

5. In situations involving significantly untimely disclosure, the judge should consider the reasons for the untimely disclosure. Was the information possessed by a party, or did it come from someone over whom the party has no control or limited control? Does the record demonstrate that the party exercised reasonable efforts to get the information in a timely manner, even if such efforts were not successful? (Scrutinize the memoranda for details: Does counsel who claims to have made efforts specify what efforts on what dates? Who was called or written to, and when? Most lawyers would be unwilling to fabricate such hard facts, but many would reckon themselves honest by characterizing their conduct in a way with which no objective observer would concur. Additionally, keep a sharp eye out for a presentation of facts which is not chronological; a story told out of sequence can be thoroughly misleading even if each individual piece is accurate. 1 ) One should also ask if the late-disclosed information was knowable at an earlier point in time. For example, where the plaintiff is not medically stationary, the plaintiff could not disclose a treating physician’s opinions about permanency before they have been formed. It may even be appropriate to grant multiple trial continuances when treatment takes longer than expected.

The essential quandary inherent in imposing discovery sanctions is that they often consist of the exclusion of relevant, reliable evidence, and thus result in trials being determined on less than the whole truth. Nonetheless, in order for a trial to be fair, the pretrial proceedings must also be fair, and in some situations this can only be achieved when cheaters are punished for pretrial misbehavior with a sanction which impacts the party’s case.

This quandary of balancing truth at trial with fairness in procedure 2 is made all the more confusing by the difficulty of determining whether any particular dispute results from inadvertence, or whether it is the result of a ruthless disregard of the opponent’s rights and the requirements of an ordered judicial system. Given the size of judicial caseloads, judges have little time or resources for detective work. In Maricopa and Pima Counties the size of the legal population prevents judges from having enough repeat experience with each individual attorney to readily observe patterns of behavior. These factors seriously reduce the likelihood of consistent, correct judicial responses to discovery disputes.

Multiply the problem by the number of different judges bringing their own unique personalities and experiences to bear in making their decisions, and, instead of a judiciary speaking with one voice we have the Tower of Babel. The unavoidable inconsistency of different judges’ differing responses to discovery matters and the resulting absence of predictability, previously aggravating, has now become a major source of anxiety and frustration for lawyers.

The “Discovery Czar” approach presented below is an effort to increase judicial consistency of response to discovery matters.

II. THE “DISCOVERY CZAR”

The “discovery czar” approach merely involves appointing a single judge or court commissioner to handle all discovery disputes in each major urban county. Trial judges will benefit because discovery disputes will be removed from their dockets, thus reducing excessive workloads. Trial lawyers will benefit, because they will have substantially greater predictability in discovery and disclosure. The personality and predilections of the discovery czar will quickly become known throughout the legal community. Instead of trying to anticipate nineteen 3 approaches to discovery disputes, the lawyers will only need to learn one.

In addressing the problem of discovery abuse, the basic truth of human nature which led to the development of the adversary system in the first place must be recognized. There will always be among us those attorneys who are ruthless; whose most-used tool of advocacy is misrepresentation of the truth in such a skillful way that they could not be convicted of perjury if they were testifying; who view rules as applying only to others; and who consider intimidation, foot-dragging and harassment as legitimate tools to achieve desired goals. Any system of rules must allow the majority of well-intentioned attorneys to function efficiently, but must also protect that majority by detecting and deterring misconduct by the ruthless.

One source of theoretical support for the “discovery czar” enforcement approach stems from the fact that complaints about discovery arise more commonly and more bitterly in urban centers. Lawyers in less populated counties generally report a substantially greater degree of collegiality, respect and trust among lawyers than is reported by urban lawyers. One reason is that when there are few judges in a county the lawyers quickly learn each judge’s preferences and predilections.

Another reason is that in rural communities there is strong pressure on attorneys not to push the boundaries of professional conduct because there is so much repeat interaction. The lawyer over whom you have the advantage today may have the advantage over you tomorrow. The judge before whom you appear to justify a nondisclosure today will be the judge before whom you are urging sanctions tomorrow. The quality of relationships lasting over many years and one’s standing in the legal community is therefore extremely important to one’s success.

In our larger, urban legal communities the threat of peer disapproval is much less substantial since an attorney encounters his adversary much less frequently. The reduced incidence of repeat dealings leads to a perception that the long-term relationship between adversaries is significantly less important than achieving the present goal in litigation. Winning becomes much more important than the good opinion of one out of 11,000 other lawyers, whom the lawyer may not again encounter in his career.

By the same token, one may get away with using the same misleading excuses or abusive tactics for years in Maricopa County, because typically no single judge will see enough of a single lawyer’s misconduct to recognize the pattern of abuse. Ruthless attorneys are often highly skilled in the sharp practices of blaming their defalcations on their opponents and muddying the waters by misrepresenting communications and understandings among counsel. Among such practitioners, for example, it is standard practice when accused of failing to make disclosure to manufacture a similar charge against the accuser.

The creation of a discovery czar would mean that a ruthless lawyer who appeared again and again in discovery disputes would quickly be exposed. The “discovery czar” approach would also rapidly increase the predictability and consistency of judicial determinations of discovery disputes. The discovery czar’s approach to common situations would quickly become known, and attorneys would be able to conform their conduct to a consistent set of expectations, would know how much disclosure is enough, etc.

This approach has been used successfully elsewhere. One example is San Jose County, California, where one judge at a time has handled all discovery motions for the last 13 years. Practitioners report that discovery abuse has dropped significantly: the lawyers know what is expected of them, and they are careful to control their practice to avoid appearing very often in “discovery court.”

Some judges are understandably reluctant to surrender the opportunity to “manage” their cases by personally handling discovery disputes. However, if discovery disputes began being handled in a consistent manner, a lot less “management” might be needed.

An oft-heard maxim in the National Basketball Association is that the players don’t care if the referees call the fouls tight or loose, as long as they call them the same at both ends of the floor. Only by having a discovery czar are attorneys likely to encounter consistent rulings in discovery disputes. There can be no sense of justice without consistency, and the predictability which consistency engenders. Having one person interpret the rules will do more to grease the wheels of justice than all the rules-tinkering in the world.

Richard S. Plattner

1. In other rhetorical situations a non-chronological approach may be perfectly appropriate; in the author’s experience such an approach is almost always misleading in the context of a discovery dispute.

2. Of course, the purpose of rules of procedure is to ensure that the parties have a fair opportunity to discover, test and present the truth at trial. Violations of procedure present the risk that information will be hidden or untested, which will result in the information at trial being inaccurate or incomplete. How ironic that in discovery disputes, as in evidentiary disputes, truth must be sometimes be suppressed in order that truth may be supported.

3. Maricopa County currently has 19 civil divisions, counting the civil presiding judge and the tax/civil judge. In 1997 Maricopa county had 22 civil divisions. The pressure on the system was extreme in 1997; given the county’s phenomenal growth in population and consonant increase in cases, the pressure in 2004 is becoming unbearable.