A colleague flagged an opinion from the Northern District of Oklahoma she’d seen blogged on a big firm website. In the decision, the judge spoke dismissively of “apps” that must be responsible for those hairballs so common in discovery: vague requests and objection-obscured replies. The blogger took the judge’s mention of apps too-literally, even noting that the judge failed to name the offending software.
I suspect those literary devices called irony and satire may have been lost on the blogger. The court in Howard v. Segway, Inc. wasn’t saying both sides had actually used bad apps; instead, Magistrate Judge Paul J. Cleary was referencing the current fervor for apps metaphorically, as a means to convey that the more things change, the more they stay the same. That is, whether you slavishly draw boilerplate from a paper form or program the same mindless twaddle into a document assembly app on your iPad, drivel remains drivel, and obstruction invites sanctions.
Because we are both witness to discovery before and after the advent of the computer, I felt a kinship with Judge Cleary as he took both sides to task for using discovery devices in ways most lawyers regard as a standard—even enviable–practice. Plaintiff Howard used a thesaurus-like definition of document, larded every request with “any” and “all” and used omnibus phrases like “concerning” or “referencing.” Defendant Segway, Inc. objected to each request with that unholy quadral, ‘vague, overbroad, unduly burdensome and not reasonably calculated to lead to discovery of admissible evidence,’ then “without waiving and subject to said objections, Segway, Inc. gestured in the general direction of something it produced.
This brought me back 30+ years, to my days as a newly-minted associate at a venerable firm in Houston. Associates were tasked to meet periodically to review the firm’s standard discovery requests to insure they were state-of-the-art. That meant striking references to Dictabelts and adding to an ever-growing litany of synonyms for “document” in the definitions. Then as now, discovery was a perverse game of Simon Says: if you didn’t phrase it just so, the other side would find a way to read your request so as not to encompass what you sought.
The irony of my being seen as an expert in discovery is that I have always despised documentary discovery. Before the advent of electronically stored information, I rarely obtained much of value through Requests for Production. Anything helpful tended to be hidden beneath the skirts of some specious objection. Cases didn’t settle for value until I got a favorable ruling on my Fifth or Sixth Motion to Compel; then productions were routinely shuffled, sanitized or incomplete. In retrospect, if it hadn’t been for depositions and subpoenas, I’d have been perennially in the dark.
Happily, the times they are a-changin’; though less in practice than in the minds of jurists like Judge Cleary who, after 30+ years of the same malarkey, seems mad as hell and unwilling to take it anymore. These jurists are putting some sting into Rule 26(g). The $5,466.50 jointly and severally assessed against Defendant Segway and its counsel, Holden & Carr, isn’t going to rock anyone’s world; but, it sends a message, warning others who litigate opposite that firm to be wary (though in fairness, apart from the bizarre delaying behavior described, Holden & Carr’s use of boilerplate objections to obfuscate isn’t new or novel among responding parties). Also in fairness, the criticism visited upon the plaintiff and his counsel could be leveled at most requesting parties.
That’s what’s refreshing about the Howard v. Segway, Inc. decision. It calls out bad behavior that’s become so commonplace, we’re inured to it.
Save for changing the name, what follows is a verbatim request and response from a case in which I’m consulting:
REQUEST: All non-privileged communications, whether hand written, typed, computer generated, or emails in John Smith’s possession regarding any civil litigation against John Smith. This request is limited to the last 5 years.
RESPONSE: Defendant objects to this request as vague and/or ambiguous, as it requires Defendant to speculate as to the meaning of the request, and being overly broad and not reasonably limited as to time and scope. Defendant further objects to this request because it is not reasonably calculated to lead to the discovery of admissible evidence, particularly because it seeks information irrelevant to this litigation. Subject to said objections, Defendant agrees to produce non-privileged documents responsive to this request, if any.
Perhaps the Request is not a model of limpidity; but, how might a requesting party target it more tightly? Excising “all” and the “any” might help; they add nothing. “Regarding” isn’t great, but is there any word (About? Addressing? Discussing?) that’s much more precise? Would “Written communications after March 25, 2008 discussing civil litigation against John Smith” truly be less likely to draw the same litany of objections?
But the Response is so mush worse. It’s precisely the sort of block-and-copy boilerplate that offends Judge Cleary, and it’s the same response opponents sent me thirty-odd years ago. Then as now, opponents didn’t specify what was objectionable about the request. Production was promised, but seldom attached, and I couldn’t tell if what was later produced was all that was responsive because, though my opponent’s logged documents withheld as privileged, they gave no indication of what was withheld “subject to said objections.”
So, how do we fix this mess?
Let’s begin by recognizing that the problem is of longstanding and fueled by ignorance and fear. Requesting parties are scared that something important will be missed by narrowly-drafted requests, and responding parties are scared that, if they don’t object to everything on every conceivable ground, they will surrender their ability to assert an objection when it might actually adhere. Further—and let’s not mince words—both sides behave this way because they are incentivized to be lazy. There is no profit in taking more time to do quality work when the insurance carrier or corporate client will only pay so much and no more. Lazy reliance on forms and boilerplate is shoddy lawyering; but, it’s the prevailing way we train young lawyers to become old lawyers.
Why should we be surprised that this generation of attorneys is no better than the last? We made them in our own image.
So I write this post to float a few steps that judges, law schools and counsel might take to make things better. Someone had the courage to eat the first oyster; someone stepped in front of the tank. I trust you, dear reader, to muster the courage to say, “Enough!”
Step One for the Bench: Follow Judge Cleary’s lead (or for you east-coasters, Judge Paul Grimm’s lead in Mancia v. Mayflower) and put a price tag on absurdly overbroad requests and obfuscating boilerplate objections. Get lawyer skin in the game. Make it a pain-in-the-pocket to get sloppy. Old dogs can learn new tricks, but not if we reward them for peeing on the rug.
Step Two for the Bench: Your values may be timeless, but your methods not so much. Don’t gauge whether something is acceptable or unacceptable based on how much it mirrors what you did when you practiced law. At least where electronically stored information is concerned, you must hold practitioners to a higher standard of competence than you might have been able to meet “back in the day.”
Step One for Law Schools: Get off your high horses and dedicate third year to compulsory skills training for anyone who plans to do something other than teach the law after graduation. Then, teach students laudable ways to draft and respond to discovery—ways that emphasize thinking over parroting forms and precision over, well, the zero sum game we play now.
Step One for Lawyers Making Requests for Production: Consider incorporating a preamble setting out the scope of information sought and/or a short explanation to accompany each request so as to clarify its scope. Trying to employ universal definitions that apply to every request (or every matter) promotes confusion. If the request isn’t a model of clarity standing on its own, is it better when you have to plug in six defined terms just to get the gist of it?
Step Two for Lawyers Making Requests for Production: Stop trying to fashion a Grand Unified Theory of Discovery manifested as requests so sweeping and convoluted as to be incomprehensible. Less is more. If what you really want is, “the complete conversational thread of e-mail and texting between Jane Pillar and Bob Post during June and July of 2012 where either discuss Paula Plaintiff,” can’t you just ask for it that simply? And please don’t demand “the metadata” unless you can articulate which metadata values you seek and have some notion what they signify.
Step One for Lawyers Responding to Requests for Production: Specify the portion of the request you find truly objectionable and recast the request to conform to what you are producing. No, it’s really not doing your opponent’s job for them. It’s saving your client from costly motions to compel and for sanctions. Plus, it’s meeting your duties under FRCP 26(g) and its state law counterparts.
A Positive Step for Everyone: Take a look at Judge Cleary’s 2011 article in the Oklahoma Bar Journal entitled, Some Thoughts on Discovery and Legal Writing. It’s a quick and read that serves to flesh out some of the thinking behind the Howard v. Segway, Inc. decision. It’s also a cogent reminder that, if you’re going to litigate in a judge’s court, it’s wise to read what he or she has published on the issue. Anyone reading His Honor’s thoughts in the OK Bar Journal should have had better sense than to respond with a barrage of boilerplate blather.
A tip of the hat to Jerri Hardaway for the heads up.