ARC Articles

Discovery: Trial By Attrition

by: Richard M. Coleman, Esq.
©The Daily Journal Corporation

The discovery system was introduced in order to cure the perceived injustices of what was known as "trial by ambush," in which surprise evidence was introduced and carried the day. If the surprised party had time, he likely could have shown the fallacy of what was introduced or found evidence to counter it. He did not have the time, and he lost. Thus, trial by ambush.

Great minds went to work to find a remedy. In the 1930s, the Federal Rules of Civil Procedure prescribed the cure. Parties were given the right to discover the evidence before trial. With full knowledge of each side's case, the parties would face no more surprises in the courtroom. Indeed, there would be fewer trials, because full disclosure of the evidence would encourage settlements.

State courts soon bought into the logic, and discovery became widely available.

In California, the courts tell us that "[t]he Discovery Act of 1986 is to be construed liberally in favor of disclosure, and that disclosure is a matter of right." Emerson Electric Co. v. Superior Court, 16 Cal.4th 1101 (1997). In addition, an appellate court said, "The purposes of California's discovery statutes are well-known. They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth, to encourage settlement by educating the parties as to the strengths of their claims and defenses, to expedite and facilitate preparation for trial, to prevent delay and to safeguard against surprise." Beverly Hospital v. Superior Court, 19 Cal.App.4th 1289 (1994), citing Greyhound Corp. v. Superior Court, 56 Cal.2d 355 (1961).

As for the July 1, 2005, changes in the discovery statutes, the courts have stated that the statutory revisions were not intended to make substantive changes in the law (Biles v. Exxon Mobil Corp., 124 Cal.App.4th 1315 (2004)) and do not affect the principle that discovery is favored.

As is often the case, however, the theory doesn't match up with the reality.

"Trial by ambush" has been replaced by a new game: "trial by attrition." When one is on offense, the goal is to multiply discovery, bury the other side with paper and procedures, intimidate the opposition, increase costs and establish a scorched-earth atmosphere. On defense, the aim is to respond to discovery in a manner that will avoid sanctions without informing the adversary of any significant information.

If the architects of the discovery system were privy to the foot-high filings involved in present-day motions for enforcement, they would weep. One response to a request for production reads, "Defendant objects to this request on the ground that it is vague, ambiguous, overbroad, burdensome and oppressive and not likely to lead to the discovery of admissible evidence. Defendant further objects on the ground that the request seeks documents protected by the attorney-client privilege and/or the attorney work product doctrine. Without waiving these objections and subject to them, and specifically excluding any communications between attorney and client, defendant responds as follows: There are no such documents in defendant's possession, custody or control."

Lewis Carroll would marvel - jabberwocky, indeed!

What does the quoted verbiage mean?

There are no such documents? Then why not say so without 10 lines of surplus?

There are documents, but they won't be produced because the request is "vague, ambiguous, overbroad, burdensome and oppressive"? If so, the response does not meet the code requirements. Respondents are required to comply with as much of the request as is not objectionable and to identify what part is objectionable and "set forth clearly" the extent of, and specific ground for, the objection. An objection that a request is burdensome and oppressive must be supported by detailed information demonstrating why compliance would be unduly burdensome and unreasonable. West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407 (1961).

There are such documents, but they are not producible because they are subject to privilege or work product? If so, the language does not meet the statutory requirements that the documents be identified with particularity. A privilege log must identify "each document for which a privilege is claimed." Hernandez v. Superior Court, 112 Cal.App.4th 285 (2003).

Maybe the tactics of the new game will win the day; maybe the other side will lose heart and throw in the towel.

On the other hand, given the competitive natures of trial lawyers, the tactics may infuriate the other side into retaliation and its attendant increase in costs, fees and stress. Perhaps some attorneys will see their bottom line swell, but all too often the losers end up being the clients, not to mention the court system struggling with the paper avalanche of discovery motions.

Richard M. Coleman, a Fellow of the American College of Trial Lawyers and former president of the Los Angeles County Bar Association, is a mediator with Alternative Resolution Centers [ARC] who also serves as discovery referee. He is on the faculty of Pepperdine’s Straus Institute for Dispute Resolution.

copyright © By Richard M. Coleman, Esq.

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