The Inelegant Art of Scorched Earth Discovery

• Jurisdiction: California,United States
• Author: By Alex Craigie
• Citation: Vol. 27 No. 2
• Publication year: 2014

The Inelegant Art of Scorched Earth Discovery

By Alex Craigie

"Believe it or not, the composition and layout of some of my images fall precisely — to a hundredth of a second — within the Golden Ratio!"

-Henri Cartier-Bresson

"I love the smell of napalm in the morning."

-Lt. Col. Kilgore, Apocalypse Now

It is interesting how rudimentary lessons in one discipline often translate well to another, such as to the litigator's craft. We have at our disposal a wide arsenal with which to conduct discovery, the core activity of building a case or developing a defense.

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When I was a young man, my father, a professional cinematographer, taught me the basics of photography. We worked in black and white. He had two cameras: a gracefully aging twin-lens Rolleiflex and a vintage Nikon viewfinder. I attempted portraits of our Great Dane, architectural studies of our house, and still life compositions of houseplants. We even built a first-rate darkroom in our basement. Though he could at times be a complicated, difficult man, I hold fond memories of the time spent with my father learning photography.

I vividly recall his early counsel against recklessly burning through film in the gamble that I might get a single decent shot. "Any idiot can snap a hundred pictures," he would say, but a good cameraman takes his time, measures the exposure, and composes the shot.

Yet, just as "any idiot" with a camera and a motor drive (that relic which advanced film at alarming speeds) could snap off a hundred shots in a single minute in order to get just one good photograph, any lawyer deserving that "I"-word label can recklessly avail himself of hundreds of interrogatories, requests for admissions and document requests in the vain search for a single useful item of evidence.

Now, if that single item of evidence wins the case or appreciably improves a client's bargaining position, it could be worth it, but only if the evidentiary value is not outweighed by the time, corresponding expense, and potential heartache of the ruthless search. But, like a reckless shutterbug who fails to appreciate the beauty of celluloid economy, it seems that many lawyers lack the experience, wisdom or restraint to recognize when the wasted time and expense of "scorched earth" style discovery will vastly outweigh any benefits.

As a young grunt toiling at an insurance defense firm, I was often tasked with preparing written discovery, a job I took seriously. California litigators are familiar with the limit of 35...