To counter discovery gridlock, courts turn to shaming, cookies and other desperate acts

This post is a companion piece to an ACEDS webcast Logikcull presented yesterday on sanctions and the new e-discovery rules amendments. The recording is available here

The discovery sanctions that attract the most rubbernecking generally arise from those rare spectacular failures to preserve evidence, or overt attempts to destroy or withhold it.

But there is a less sinister, but ultimately more corrosive, sanction-worthy behavior that is, some would say, rampant — and judges before whom it occurs are both growing increasingly intolerant of and finding more creative ways to kill it.

This behavior could be described in broad strokes as “failure to cooperate,” but, more specifically, it can be identified as ignorance-driven obstinacy, where lawyers choose to butt heads over discovery because they either understand discovery abuse to fall under the umbrella of zealous advocacy, they lack the technological competence to appropriately address e-discovery, or some combination thereof.

With the emergence of guidance and law that is said to emphasize cooperation, proportionality and technical competence (the effective-today Federal Rules amendments, but also California Formal Opinion No. 2015-193 and Comment 8 to ABA Model Rule 1.1), the judiciary appears to have its collective antenna better attuned to, and to be showing less tolerance for, antagonism and gridlock. Indeed, while it was once the assumption that the bar was outpacing the judiciary in terms of e-discovery proficiency, that perception — and perhaps the reality — has flipped, where it now appears to be practitioners who, on the whole, are taking heat from the bench for their lack of technical wherewithal. Consider the rise of thought-leading epicenters in the federal courts of Northern California, Manhattan and Pittsburgh. And see the recent Exterro study that found not one of 22 federal judges agreeing with the assessment that “The typical attorney appearing before me possesses the… knowledge (legal and technical) required to effectively counsel clients on e-discovery matters.”

To counter this abuse, judges are reaching deep into their bag of correctives for a tool that is more effective than fines or cost-shifting: shame.

The godfather in this regard is recently retired San Francisco Superior Court judge Richard Kramer, who would frequently order parties fighting over discovery to bring cookies for each other because, in his words, “you can’t act like a jerk when you’re eating chocolate chip cookies.”

Speaking to The Recorder in 2011, he explained:

“The cookies have to be good cookies; not like a bag of Chips Ahoy, but something that’s sold by the cookie… People start to get hot and heavy, and I’ll say, ‘Take a bite of your cookie, will ya?’ It just changes the thing. The lawyers go, ‘Oh look, we’ve got cookies. It’s just like school.’ I’m not kidding you.

Judge Mark Bennett, in Iowa, infamously ordered a lawyer who he thought to be making too many boilerplate objections during a deposition to produce a training video to be distributed throughout her firm — with the prominent disclaimer that video was created pursuant to a federal court’s sanction. Years before, in St. Paul Reinsurance v. Commercial Financial Corp., Bennett ordered a lawyer allegedly guilty of the same tactic to write an article describing the impropriety of frivolous objections, and to submit that article to bar journals in two separate states. And in Oklahoma, a federal judge ordered an offending party to donate $2500 to its local bar association to fund an e-discovery seminar.

(For the King Lear of shaming opinions, read the “analytical wizardry” that is Bradshaw v. Unity Marine Corporation.)

It is also worth noting that judges, along with embracing more creative solutions to the cooperation problem, are also finding entirely new, or underutilized, legal pathways to punish uncooperative parties. In the recent Honeybaked Ham case, a judge sanctioned the EEOC for feet-dragging via the until-then unused sanctions stipulation in federal Rule 16, which unlike the limitations imposed by the new Rule 37(e), allows the court to level “any just orders” for failing to obey any pre-trial order or coming unprepared to pretrial conferences.

That judges are increasingly relying on these novel measures to curb discovery abuse perhaps speaks to the futility other approaches have yielded and to the thinning of patience the tactics provoke.

That discovery abuse is in the first place so prevalent and deep-rooted points to a grey space where professionalism clashes with so-called “zealous advocacy”; where zealous advocacy is conflated with discovery warfare; and where there is much opportunity to further drive up the costs for the opponent through a process that has already driven entire economic classes out of court.

To paraphrase Judge Bennett, most cases are generally not resolved on the merits because, after the discovery war is waged, there is no money left for merits. But, speaking from another point of view, discovery has proven an incredibly effective weapon at driving opposing parties into submission. Perhaps pushing the bounds of professionalism is simply good lawyering.

All this points to a larger problem of incentives and, specifically, the question of whether lawyers and other legal service providers are appropriately incentivized to work efficiently and cooperatively. Does an attorney billing by the hour cease to be paid for the motion practice challenging his and his client’s discovery conduct? Does he foot the bill for the monetary fine to be paid? The first answer is rhetorical. The second is generally no. And what about a document review that drags on much longer than expected? Who is paying for that?

When asked why it is in a lawyer’s interest to cooperate, Bennett said because it’s always in a lawyer’s best interest to resolve a case for his or her client as inexpensively as possible. Many others wonder if that’s really the case — and whether, in a naturally adversarial, multi-billion dollar system that generally does not reward efficiency, appeals to cooperation will ever truly resonate without the appropriate sticks and carrots.

Judges and others hoping to see a break in the discovery-driven bottleneck have put a ton of faith in the new rules changes and its grounding in cooperation and proportionality — the latter a concept that has long been a fixture in the rules but less conspicuous in practice. But real progress will also require a change in behavior. Some observers contend that this starts with greater resolve by corporate clients (the ones who are paying the legal bills) to exert more control over cost — for instance, by demanding fixed or contingency fee arrangements and jettisoning outside counsel when cost expectations routinely aren’t met. It may also be the case that, in lieu of this behavior, corporate will have to play a more hands-on role in managing the discovery process by, through proactive data management, working to reduce the ESI volumes that are so often entrusted to outside firms and vendors.

There may also be room for a swifter trigger finger when it comes to the imposition of low-level sanctions, which, all told, are rare. And, of course, if all else fails, there is always Mrs. Fields.

Robert Hilson is a director at Logikcull. He can be reached at robert.hilson@logikcull.com.

To learn how bad behavior can lead to discovery malpractice, check out the below whitepaper.