Good Faith in Discovery

• Author: Hon. Paul Grimm
• Pages: 23-26

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Good Faith in

Discovery

HON. PAUL GRIMM

The author is a U.S. district judge for the District of Maryland.

Why do lawyers and judges complain so much about discovery

in civil cases? It takes too long and costs too much. There is too

much contention and game playing and not enough cooperation.

Judges don’t want to get involved in resolving discovery disputes

and are ill-tempered when they have to. The laments go on and

on. But a moment’s reflection suggests that the way in which dis-

covery typically is conducted virtually guarantees there will be

disputes. Consider this: Discovery requests and responses are not

filed with the court (unless attached as an exhibit to a motion);

once the process starts, the parties are free to file and respond

to discovery requests without court permission or supervision,

in any sequence they desire; and the means by which discovery

can be obtained (interrogatories, document requests, inspections,

mental and physical examinations, depositions, and requests

for admission) often overlap and are duplicative. Moreover, the

omnipresence of digital communication devices (smartphones,

tablets, laptops, desktops) and methods (email, text messages)

and round-the-clock ability to send a snarky communication to

opposing counsel (without having to look them in the face) over

a discovery dispute seem preordained to ensure that the interac-

tions between counsel are as unpleasant as they are unproductive.

Dissatisfaction with the discovery process has prompted gen-

erations of lawyers and judges to call for reform (often dramatic):

limit the scope of discovery, require it to be proportional to what

is at issue in the case, reduce the number of interrogatories and

document requests, shorten the permissible number and length

of depositions, reform designee depositions, shift costs from the

producing party to the requesting party, encourage judges to more

promptly and informally resolve disputes, etc. Yet, each of these

suggestions has been adopted in revisions to the Federal Rules

of Civil Procedure, evidently (from the enduring complaints)

without much positive effect. So what’s to be done? Forswear

litigation in favor of mergers and acquisitions?

Rule 26(g) Can Save Much Trouble

From the perspective of someone who has spent nearly 50 years

thinking about discovery in civil cases, as an attorney, judge, and

former member of the Civil Rules Advisory Committee (and chair

of the Discovery Subcommittee), I am convinced that much of

the unpleasantness that characterizes discovery can be avoided

by following both the letter and spirit of a single rule of civil pro-

cedure—one that has been part of the rules since 1983, yet seems

to have been forgotten or overlooked by lawyers and judges. That

rule is Federal Rule of Civil Procedure 26(g), and it is designed

to parallel the requirements of Federal Rule of Civil Procedure

11, which governs pleadings, motions, and other court filings.

Both are designed to ensure that, from the moment litigation