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discovery

Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]

Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.

I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.

[Title updated 9 a.m.]

P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).

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U.S. District Judge Mark Bennett of the Northern District of Iowa, presiding over a product liability case, has asked defense counsel “to show cause as to why he should not be sanctioned for the ‘serious pattern of obstructive conduct’ he displayed” in a client’s deposition, which seemed aimed both at interruption for its own sake and at coaching the witness as to how to answer. “The attorney objected so many times that his name was found, on average, three times per page of deposition transcript.” [Nick Farr, Abnormal Use]

Rather than fine the lawyer, Judge Nelson ordered him to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court.

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That’s putting it mildly. But issues like litigation holds and charges of spoliation, and discovery generally, are where much of the action is in mass torts. Beck explains at Drug and Device Law.

Federal judge Mark Bennett has resorted to what might be called a creative sanction against out-of-state law firm Jones Day following what he considered excessive interruption and witness-coaching during discovery in the case of Security National Bank of Sioux City v. Abbott Laboratories. [Above the Law]

Following widespread complaints, led by the business community, that the high cost of the discovery phase of litigation is enough to deprive parties of substantive justice, the Advisory Committee on Rules of Practice and Procedure in August of last year proposed amending the Federal Rules of Civil Procedure to make discovery less burdensome.  Following a public comment period that ended in February it amended the proposals somewhat and submitted them to a standing rules committee which in turn approved them in late May “with the recommendation that the U.S. Supreme Court accept the changes. If approved, the proposed amendments will go into effect on December 1, 2015.”

Some resources:

  • Tony Rospert and Rob Ware (Thompson Hine), working paper for Washington Legal Foundation on e-discovery costs;
  • Beck, Drug & Device Law (“While hardly perfect, these changes to Rule 37(a) are a welcome step in the right direction.);
  • Alison Frankel, Reuters, on the politics (trial lawyers and legal academics resisting reform);
  • Adapted excerpt in Reason from the chapter on discovery (“The Assault on Privacy”) from my book The Litigation Explosion, 1991.

I was a guest Tuesday on the Roger Hedgecock program at the San Diego Union-Tribune, discussing the way Washington, D.C. seems to have come down at least as hard on Toyota as on General Motors, maybe harder, even though the safety shortcomings falsely attributed to Toyota appear actually to be present in the GM case.

One striking feature of the GM story is the extent to which a culture of putting as little as possible on paper appears to have undermined GM’s capability to grasp the scope of the safety problem with the flimsy ignitions and their relationship to nonfunctional airbags. Bill Vlasic of the New York Times reports:

To the legal department at General Motors, secrecy ruled. Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.

As I’ve often noted, organizations gripped by fear of legal consequences or hostile oversight often develop a “put as little as possible on paper” mentality, even though such a mentality regularly proves counterproductive to the organization’s mission by fostering ignorance and lack of coordination and allowing bad practice to take root.

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Washington, D.C. intern hit with NLRB subpoena over blogging work for policy group critical of unions [Tucker Nelson, National Review]

Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:

We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.

After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,

the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun.

Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.

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Making the rounds, this dramatization of an Ohio deposition (we covered it in 2011) arising from a lawsuit over photocopy fees at the Cuyahoga County Recorder’s Office. [New York Times, Cleveland Scene]

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April 4 roundup

by Walter Olson on April 4, 2014

  • “Helmet maker not to blame in football player’s injury, jury finds” [L.A. Times]
  • “New Corporate Survey Illustrates Burdens Of Document Preservation And Benefits Of Proposed [Rule 26 Discovery] Reform” [Mark Chenoweth/WLF, Timothy Pratt/Abnormal Use, NJLRA, earlier]
  • Have divorce statistics been misreported? [Kay Hymowitz, Robert VerBruggen]
  • “Intoxicated Man Loses Big at Casino, Wants His Money Back” [Abnormal Use]
  • “SCOTUS Deferred to Executive Agencies. What Happened Next Will Infuriate You!” [Ilya Shapiro, Cato on Peri & Sons Farms v. Rivera]
  • Overtime scheme: Obama doesn’t “worry about being held accountable for the unwelcome consequences” [Steve Chapman] Advice for small business on complying with salaried employee classification [Suzanne Lucas ("Evil HR Lady") at Inc., earlier here and here]
  • Religious liberty, discrimination law and how spurious rights drive out the real [Jacob Sullum] Timely: “Harvard Hosts Conference on Religious Accommodation in the Age of Civil Rights” [TaxProf]

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“In a blistering ruling against Cal Fire, a judge in Plumas County has found the agency guilty of ‘egregious and reprehensible conduct’ in its response to the 2007 Moonlight fire and ordered it to pay more than $30 million in penalties, legal fees and costs to Sierra Pacific Industries and others accused in a Cal Fire lawsuit of causing the fire. … Sierra Pacific, the largest private landowner in California, was blamed by state and federal officials for the blaze, with a key report finding it was started by a spark from the blade of a bulldozer belonging to a company working under contract for Sierra Pacific.” The company has contended that the cause determination was reached in haste and pursued with an eye to extracting legal proceeds for an agency-run settlement fund later found to be illegal. [Sacramento Bee; Robert Hilson, Association of Certified E-Discovery Specialists]

January 22 roundup

by Walter Olson on January 22, 2014

  • Reminder: federal panel finally mulling reform of ultra-costly pretrial discovery, now’s the time to send comments [Kyl/WSJ, earlier]
  • Michigan woman convicted of false rape claim had sent man to prison for 10 years in earlier case [ABA Journal]
  • Strickland, key figure in disastrous CPSIA law and then chief at NHTSA, lands at BigLaw’s Venable [AutoNews, Detroit News]
  • A religious accommodation too far? Devout student at secular university asks not to work with female classmates [York U., Ontario; CBC via @amyalkon, also related on Nova Scotia aikido class] Inviting shop clerks to set up “no booze/pork” check lines is a sensitivity too far [Andrew Stuttaford, Secular Right]
  • “Top 2013 Jury Awards: Price-Fixing, Nursing Home Liability, Defamation” [Margaret Cronin Fisk, Bloomberg] Top legal ethics stories of 2013 [Legal Ethics Forum and followup on R v Farooqi & Ors]
  • Liberate history-talk: “Another Battle Against Silly Tour-Guide Regulations” [Ilya Shapiro] Handing out $1,000 fines in Charleston, S.C. [Brian Doherty]
  • “The line between Salon and Granma is getting awfully blurry” [@dandrezner; more about DoNotLink.com]

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“Microsoft is legally obligated to store an average of 60 million pages of documents for every lawsuit brought against it, even though only 88 of those will end up being used in court.” [Jacob Kastrenakes, The Verge] The company is one of many that has announced its support for a change in the Federal Rules of Civil Procedure, proposed in August by the Committee on Rules of Practice and Procedure, which would narrow the scope of obligatory discovery. The burden of discovery “deters companies from defending themselves against meritless suits and slows the process of dispute resolution,” writes Jon Palmer, Microsoft’s assistant general counsel. The proposal would also lay forth clearer standards on document retention so as to curb proliferating litigation over charges of spoliation.

The Washington Legal Foundation likes the proposals too, as does James Beck at Drug and Device Law. Not happy about it: the litigation lobby and some Senate Democrats friendly to their cause. The Judicial Conference is holding hearings that are likely to be more balanced. Comments with the Advisory Committee are due by February 15, 2014.

  • “Venue matters.” Enough to double value of med-mal case if filed in Baltimore city rather than suburbs? [Ron Miller] Mark Behrens and Cary Silverman on litigation tourism in Pennsylvania [TortsProf]
  • “Maybe [depositions] are like what some people say about war — vast periods of boredom interrupted by brief moments of terror.” [Steve McConnell, Drug and Device Law, also see Max Kennerly]
  • Centrality of procedure in American legal thinking dates back to Legal Realists and before [Paul McMahon, U.Penn. J. of Int'l Law/SSRN via Mass Tort Prof]
  • Company sues to challenge CPSC’s dissemination of unproven allegations about it in new public database: should judicial proceeding keep its name confidential? [Fair Warning]
  • Thesis of new Jerry Mashaw book: administrative state in U.S. long predated Progressive Era [Law and Liberty: Joseph Postell, Mike Rappaport] Relatedly, hallmark of administrative state said to be “prerogative,” i.e., power to make binding rules without new legislation [Michael Greve]
  • Lorax standing humor: even the Ninth Circuit might not have been able to help [Howard Wasserman, Prawfs]
  • “Formalism and Deference in Administrative Law” [panel at Federalist Society National Lawyers' Convention with Philip Hamburger, Kristin Hickman, Thomas Merrill, and Jide Okechuku Nzelibe, moderated by Jennifer Walker Elrod]

The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.

Equal time dept.: Richard Epstein takes a different view.

– against patent trolls. But Kevin O’Connor, CEO of a startup named FindTheBest, went ahead and did so [Joe Mullin, Ars Technica] Exploding and escalating-on-response demands, threats of criminal prosecution, demands for “sequestration” (removal from service) of his company’s computers to prevent evidence spoliation, and promises of burdensome discovery are all part of the story.

Procedure roundup

by Walter Olson on September 12, 2013

The deposition-extracted tidbits were enough to bring down Deen’s culinary empire, but that doesn’t mean they were actually relevant to anyone’s legal case against her: “U.S. District Court Judge William T. Moore Jr. ruled Monday that [Lisa] Jackson, who is white, has no standing to sue them [Deen and her brother] for race discrimination.” [USA Today]

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