Article, 1016 UTBJ, Vol. 29, No. 5. 30

Author:Josh Sundloff, J.


No. Vol. 29 No. 5 Pg. 30

Utah Bar Journal

October, 2016

September, 2016

The Document Speaks for Itself: “A Pox Upon These Words”

Josh Sundloff, J.

“A pox upon these words”; that is how one judge described his disdain for the phrase “the document speaks for itself.” FDIC v. Stovall, 2014 WL 8251465, at *11 (N.D. Ga. 2014) (No. 2:14-CV-00029-WCO). Why such contempt? Simply put, the phrase is neither a proper response to an allegation in a pleading nor is it an acceptable discovery objection, and it only serves to unnecessarily prolong discovery. For the sake of our clients, the judicial system, and the Bar in general, attorneys should avoid this and other folklore responses and objections.

But let me back up a moment. At this year’s Spring Convention held by the Bar in St. George, I attended a panel discussion regarding the evolution of the practice of law in Utah. In that discussion, the panelists (Judge Royal Hansen, Juli Blanch, and Richard Burbidge) lamented what they see as the vanishing jury trial. Among the reasons I heard for this vanishing act is that attorneys now too often become mired in discovery. That is, rather than a means to an end, discovery has become the end itself. Seemingly endless discovery disputes, multitudinous and improper objections to discovery requests, unconvincing claims of privilege, hypertechnical readings of discovery requests, and unfounded requests for extensions have become the rule. As the panelists in that discussion pointed out, this discovery-as-an-end issue deserves a broader discussion not only to save the jury trial but also to save the monetary and time costs imposed on the judicial system and litigants. My purpose in this article however is not to answer those broader questions; rather, my purpose is to discuss one symptom of that broader malady and to suggest a small measure of change to the members of the Bar.

The symptom I refer to is the tendency of attorneys, when faced with carefully crafted allegations or discovery requests, to give meaningless responses or assert a litany of objections, often to avoid answering tough questions. To be sure, I am not saying that proper objections and claims of privilege do not have a place in responsive pleadings or during discovery. They do and should. However, certain ubiquitous responses (e.g., “states a legal conclusion to which no response is required,” “within plaintiff’s own knowledge,” “invades the province of the jury,” or “presents a genuine issue for trial,” House v. Giant of Maryland LLC, 232 F.R.D. 257, 262 (E.D. Va. 2005)) not only do not advance the litigation process, they arguably avoid an attorney’s duty of candor and subject the attorney to adverse rulings, to say nothing of the drain those responses place on the system. (I pause here to ask a rhetorical question: those who have used one or more of those phrases I just listed, did you verify the validity or permissibility of using the phrase, or did you just use it because you had seen other attorneys use it? If you’re being honest, I suspect it was the latter.) As one judge grumbled in the midst of a discovery dispute: The practical implication of these pseudo-responses is that a party must request much broader discovery because the opposing party did not really admit anything. Not only does this needlessly increase the costs of litigation…but the discovery process may devolve into a battle royale of broad requests against worthless responses.

Stovall, 2014 WL 8251465, at *12. Perhaps the quintessential example of these responses, and the focus of this article, is the oft-used objection that a “document speaks for itself.”

With that archetypal example and the broader discovery malady i n mind, in this article I am going to discuss the following: the likely origins of the-document-speaks-for-itself response, why that phrase is not a proper objection, the possible consequences of using the phrase, and the suggestions I have for alternatives to the phrase. Although I will be narrowly focusing on this one objection, I believe the principles I will discuss also apply to the broader problem. In this discussion, of necessity, I will be relying heavily on federal case law because Utah state courts have not addressed the issue – at least not at the appellate level; nevertheless, I suspect the federal courts’ opinions I will reference are likely shared by many Utah state court judges. Further, Utah state courts often look to decisions under the federal rules for guidance in interpreting similar Utah rules. See, e.g., 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 64, 99 P.3d 801. In the end, I hope the members of the Bar will not only stop saying or using the phrase the “document speaks for itself,” but I generally hope we can also move toward a model of using limited and proper objections. I believe doing so will foster a small but needed improvement to the ever-increasing...

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