ABSTRACT
Discovery in a commercial case can become a quagmire. Lawyers have an ethical obligation to advance their clients’ interests, and for litigators, the prevailing conceptual model is zealous advocacy. A lawyer’s personal incentives align with that conceptual model, because lawyers benefit by going the extra mile to please a client, to justify a fee, and to earn more business. In civil litigation, advancing a client’s interests often translates into taking aggressive positions in discovery. Information is power, so not producing documents deprives an adversary of power. Time is another precious resource, so backloading the discovery schedule when producing documents or witnesses deprives the adversary of time. Discovery doctrines require fact-specific application, which creates ample wiggle room for motivated reasoning. The level of enforcement for discovery violations is low, because the vast majority of civil discovery takes place outside of the Court’s view, and because judges notoriously dislike discovery disputes. The combination of significant incentives for misconduct, ample opportunities for misconduct, and low levels of enforcement causes the civil discovery process in commercial cases to regularly spin out of control …
Laster, J Travis and Bernlohr Maizel, Elise, Discovery as a Compliance Problem (November 27, 2024), Journal of Corporation Law, volume 50.
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