Discovery Mud Fights

• Author: Hon. Sidney Schenkier
• Pages: 38-43

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Discovery Mud Fights

Why They Happen and

How to Avoid Them

HON. SIDNEY SCHENKIER (RET.)

The author is a retired federal magistrate judge for the Northern District of Illinois.

Who among us went to law school with the idea that, wow, am

I ever looking forward to spending untold hours duking it out

with my opponents in nasty, name-calling, down-and-dirty dis-

covery battles?

Not I. In 1976, when I began law school, the country was still

in the post-Watergate glow in which attorneys were seen as he-

roes who had spoken truth to power and thereby had helped to

save the nation. I went to law school viewing the law as an hon-

orable profession that offered endless opportunities for lawyers

(and judges) to do good, no matter the area of law in which they

practiced. Nearly 45 years later, I still see the law in that way.

My guess is that you do as well.

So why do lawyers spend so much of their time and energy in

vitriolic discovery battles? During the nearly two decades that I

engaged in the discovery process as a lawyer, and then the 21½

years I oversaw the discovery process as a judge, I have seen

discovery battles increase both in volume and intensity—and too

often devolve into personal nastiness.

To be sure, often there can be legitimate differences of opin-

ion that can lead to discovery disputes that are meaningful in a

case. Questions about privilege or about the cost of the discovery

sought as measured against its value in the case are examples

that frequently come up. But if we are honest with ourselves, we

would concede that a number of discovery disputes are about

matters that, in the broad arc of a case, are just not worth the

time and energy devoted to fighting about them. For example, I

have not seen the fate of a case turn on whether a proper count-

ing of the subparts of interrogatories results in a sum of 28 rather

than 25 or whether a party gets 11 depositions rather than 10 or

whether the depositions last four hours rather than five.

Not only do lawyers spend lots of time on inconsequential

disputes such as these (in addition to serious discovery disagree-

ments), but they get furious with each other about them. And they

say or—more often—write things about each other, and some-

times about their respective families, that I’ll bet in hindsight

they regret.

Why does this happen? And, when you are the target of the

nastiness, what can you do to avoid being sucked down into a

mud fight? Those are the two questions on which I offer some

thoughts.

Civi lity in Litigation

The issue of civility in our litigation process—or the lack of it—

has been a topic of discussion for at least three decades. In about

1990, Judge Marvin E. Aspen of the U.S. District Court for the

Northern District of Illinois chaired a civility committee at the

request of the then chief judge of the Seventh Circuit, William

Illustration by D arren Gygi