It's Time to Fix Our Broken Discovery Civil Culture

• Jurisdiction: United States,Federal,California
• Citation: Vol. 35 No. 2
• Publication year: 2022
• Author: Written by Hon. Lawrence P. Riff*
• topic: Civil Procedure

IT'S TIME TO FIX OUR BROKEN DISCOVERY CIVIL CULTURE

Written by Hon. Lawrence P. Riff*

Oh no! Here comes another judge handwringing about civil discovery disputes. What on earth is there new to say on this dismal subject? Short answer: Nothing new.

But still, plenty to say. This author — now in his 40th year in the law world having played the part of in-house counsel, law firm associate, law firm partner, law firm practice group leader, ABOTA-member trial lawyer, and judge in the criminal, family law, and civil divisions of the Los Angeles County Superior Court — believes that there is so much wrong, and so much that could be right, in the way civil discovery is customarily performed. The problem, I think, is a failure to teach our children well. I hereby call upon every lawyer who aims or claims to be a mentor to pick up the torch and illuminate the path forward. Let us review the most basic lessons.

Lesson One: There is nothing wrong with the discovery statutes or rules of court as they pertain to civil discovery. No, "The fault, dear Brutus, is not in our stars/But in ourselves...." (Shakespeare, Julius Caesar, act I, scene 3, lines 140-141). Culture, even in litigation, is "the way we do things around here." Our civil discovery culture — the way we do things around here — is broken. We are sleepwalking our broken practices into the next generation. To the generation of lawyers in your early years of practice and seeking to master their professional skills, I say unto you: Do not model your discovery behavior on that of your elders. Indeed, throw out your discovery form files and your model "meet and confer" letters. Put your shopworn and dog-eared "general objections" in the dustbin of verbose uselessness. Let's go to first principals.

Civil discovery is designed to be self-regulating. The court should not be involved. Ever. If one finds oneself before a judge on a discovery motion, it represents a unilateral or bilateral professional failure, of imagination, negotiation, oversight, or professionalism — usually all four. Certainly, that is what your judge is thinking immediately upon seeing the motion: These lawyers have failed and now they're bringing their failure to me to fix for them. Often the discovery dispute is the first substantive matter in the case to be presented to the judge. One's only opportunity to make a good first impression has been squandered. So, please, despite whatever you have previously been taught or have gleaned from the behavior of others, do not be misled: A discovery fight is not a proxy or warm-up bout for the underlying dispute; it is not a way to "earn your bones" or notch your belt; discovery is not something to be "won" or "lost"; nor is discovery a forum to show fierceness or mule-like stubbornness to one's client, opponent, or managing partner. At the risk of enunciating a harsh truth, I say that the correct metaphor for

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a discovery dispute is that a skunk has sprayed the parties and now they — and you — are stinking up the courthouse. I tell you when there are smart, good lawyers on both sides, they never take a discovery dispute to court. Does that mean that all is kumbaya in those cases? Of course not. It means that the lawyers understand "self-regulating," understand meet and confer, understand cutting a deal, and understand the Jagger/Richards dictum that if you try sometime, you just might find, you get what you need.

Thus, if it is humanly possible, don't take a discovery dispute to court. There is no upside for anyone.

Lesson Two: When propounding discovery, give it some careful thought at the front end. Tailor it to the case and the specific controversy. Go narrow and specific, not broad and...