Sometimes Less Is More: Proportional, Practical Litigation

• Pages: 21-22
• Date: 01 April 2023
• Author: Hon. Carl A. Aveni
• Subject Matter: Derecho Civil

he lawyers are back in court on their third dis-

covery dispute. A four-page motion was met

with a 10-page response. Which somehow garnered a

12-page reply. Somebody just requested sanctions,

although the underlying issue seems prone to mul-

tiple interpretations. Worse, while this latest dispute is hotly

contested, the discovery in question doesn’t even seem all that

critical to the main contentions of the case.

Back in chambers, the judge asks the lawyers if their cli-

ents have any interest in revisiting their stalled efforts at

mediation. Both sides shake their heads. Their clients have

already spent too much time and money to settle now. They

intimate that the legal fees and expert costs are fast approach-

ing the value of the claims, and the only way forward is by

prevailing at trial. By this point, everyone realizes that both

parties will feel angry and abused by the system, regardless

of who ultimately prevails. It’s a mess. And, frankly, it was

wholly avoidable.

Sometimes Less Is More:

Proportional, Practical Litigation

By Hon. Carl A . Aveni, Litigation News As sociate Editor

© Getty Image s

Don’t Make Mountains out of Discovery Molehills

Gone are the days when lawyers were broadly encouraged,

under former Federal Rule of Civil Procedure 26(b)(1), to

“obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense.” The current ver-

sion of that same rule now adds the further requirement that

the discovery also be “proportional to the needs of the case,

considering the importance of the issues at stake in the action,

the amount in controversy, the parties’ relative access to rel-

evant information, the parties’ resources, the importance of the

discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benet.”

As Chief Justice Roberts noted at the time, this change grew

out of a concern that “in many cases civil litigation has become

too expensive, time-consuming, and contentious, inhibiting

effective access to the courts.” The hope was that this refocus-

ing on proportionality would “(1) encourage greater coopera-

tion among counsel; (2) focus discovery … on what is truly

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