Comments on: Bankruptcy Judge to Efficiency Experts: “Stop Wasting Time”

By: KAS

KAS — Wed, 01 Apr 2009 11:09:24 +0000

I think the above comments indicate the current challenge facing all litigation – the temptation to win through discovery games vs. the need to fully disclose relevant documents.

The American College of Trial Lawyer’s Report addresses this very issue by recommending the disclosure of relevant information from the outset of the case.

Many litigators use the discovery process to increase costs on opponents and gain strategic advantages. This method has been successful in the past.

I think it is interesting to see that a judge with the North District of Ohio is taking a hardline with disclosure of discovery information. I wonder if this is a common action by judges or a growing trend as lawyers gain greater knowledge of disclosures required in e-discovery.

By: Ken Withers

Ken Withers — Mon, 02 Mar 2009 22:44:33 +0000

In response to MWS, I think the judge was objecting to the Court unwittingly being made “part of the game.” Lawyers are behaving unethically when they treat discovery as a “game,” and they are adding unnecessary costs and burdens to the civil justice system when they do so. Bankruptcy court is the last place one would expect the lawyers to be running up the billable hours with discovery hide-and-seek games, but even in general federal civil litigation, Rule 26(e) specifically forbids games like this. Judges are sick and tired of this sort of behavior, as are an increasing number of clients who are simply looking for a fair resolution of their claims. A motion to compel should not become the standard method of obtaining discovery under the rules.

By: MWS

MWS — Wed, 18 Feb 2009 16:42:14 +0000

I feel like the court took a pretty harsh stance here. Litigators play games like this all the time with discovery. If the party wanting the production simply filed a motion to compel, then the withholding party would simply be compelled to produce the information. But threatening to dismiss an entire claim because one party was being admittedly difficult with respect to non-compelled discovery seems excessive to me, since that sort of thing happens all the time – it’s just part of the game.

By: Will Hilton

Will Hilton — Wed, 18 Feb 2009 13:59:18 +0000

There is a good analog here from normal, paper discovery. If Counsel plans on using information found in paper documents, say a contract or an expert’s report, then Counsel would know that merely providing the opposition with a summary of said contract or expert’s report would not be enough to satisfy Counsel’s disclosure requirement. Counsel should know that those paper documents must be fully disclosed to the other side. The same should also be true with electronic documents.

Another way of looking at this is applying the Golden Rule: treat others as you would like to be treated. If LTV had pulled the same stunt, how do you think C&K would have reacted? C&K would clearly be unsatisfied with a mere self-serving summary of the information; C&K would want to see this information with its own eyes. That likely being the case, C&K should have afforded LTV the same opportunity.