March 1999

Ethics And The Law
Discovery Practices & Problems

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Discovery is increasingly time-consuming, expensive and contentious, and requires significant preparation, skill and plain hard work to do well. Discovery also involves sometimes difficult practical and ethical issues. This article summarizes findings of a national survey on the nature, extent, cost and problems arising in discovery in federal civil cases. One or more subsequent articles will look at some of the ethical issues associated with discovery problems under Washington's Rules of Professional Conduct.

Introduction

In May 1997, staff of the Federal Judicial Center, the research arm of the federal judiciary, surveyed lawyers involved in federal civil cases as part of an examination of federal discovery rules by the Civil Rules Advisory Committee of the Judicial Conference. The survey was sent to about 2,000 lawyers (1,200 responded) involved in approximately 1,000 closed federal general civil cases deemed likely to have had some sort of discovery. Most responding lawyers practiced in firms with others, 12% were sole practitioners, and 8% were government lawyers. They averaged 16 years of practice, while 75% had practiced for more than 10 years.

The survey sought to learn the size, nature and cost of discovery being used in federal courts, as well as to identify problems, and perhaps solutions, with discovery. The staff issued its report, Discovery and Disclosure Practice, Problems and Proposals for Change: A Case-based National Survey of Counsel in Closed Federal Civil Cases (the "report") in November 1997.

The report shows extensive use of discovery in the federal cases, with about 85% of the cases having some discovery (including discovery planning) and some formal discovery or disclosure. In these cases, 94% of the lawyers stated that formal discovery had been used in their cases. The most frequently used discovery devices were as follows:

Because Washington's Civil Rules for Superior Courts have no counterpart to the federal "laydown" disclosures of FRCP 26(a)(1) (in effect in the U.S. District Court for the Eastern, but not for the Western District of Washington), this article generally omits discussion of issues related to such disclosures.

Most lawyers (69%), including both plaintiffs' and defendants' lawyers, reported that discovery or disclosure generated about the right amount of information needed for a fair resolution of the case, although plaintiffs' lawyers (12%) were more likely than defendants' lawyers (5%) to report that discovery gave too little information.

About two-thirds of the 94% who engaged in formal discovery also informally exchanged discoverable information without being required by rule to do so. This may include meeting and conferring with opposing counsel to plan for discovery in accordance with FRCP 26(f). For most lawyers (74%), a discovery plan or scheduling order was entered in their case. The median time limit imposed in scheduling orders for completion of discovery was six months.

Of lawyers who reported no formal discovery, 46% reported that they had exchanged information informally. These exchanges took place in 64% of non-contentious cases, as well as in 46% of contentious cases. Experienced lawyers voluntarily exchanged information more (63%) than inexperienced lawyers (50%). Voluntary information exchanges occurred more often in tort cases (69%) than in contract (54%), civil rights (54%) or other cases (52%). Lawyers who used informal exchanges were less likely to report discovery problems (38% reported problems) than those who did not use informal exchanges (58% reported problems). The report did not draw any cause/effect conclusions between the use of formal discovery, informal discovery, experience and so on.

The report found that the median cost of litigation in the surveyed cases was about $13,000 per client, with plaintiffs and defendants each spending about the same amounts. Discovery expenses represented about 50% of total litigation expenses. About 40% of lawyers reported unnecessary discovery expenses due to discovery problems, and those unnecessarily incurred discovery expenses were estimated to amount to about 9% of total discovery expenses or 4% of total litigation expenses.

The factor most closely related to the total litigation costs was the size of the monetary stakes. Other factors included the size of the law firm (the larger the firm, the higher the discovery costs, regardless of the complexity or size of the stakes), the type of case, and whether the case was complex or contentious. The median estimated monetary stakes per client were about $150,000, with defendants estimating somewhat higher stakes than plaintiffs. The median percentage of discovery expenses was 3% of the amount at stake in the litigation, regardless of that amount. Thus, while the percentage did not vary with the size of the monetary stakes, the actual dollar amount rose proportionately as the stakes increased. The report notes that monetary stakes, while directly related to the cost of discovery, are not the only reflection of a case's importance to the parties, and that nearly 25% of lawyers reported that the dominant concern in their cases was non-monetary (such as equitable relief being sought, or impact on future claims). These non-monetary concerns were of more importance in civil rights cases (70%), than in contract (43%) or tort (34%) cases. The report did not find any relationship, however, between non-monetary stakes and the amount spent on discovery.

As the amount at stake increased from $4,000 or less (27% of lawyers reported having discovery problems) to over $2,000,000, problems increased significantly (69% of lawyers reporting discovery problems). Discovery costs were generally highest in patent, trademark, securities and antitrust cases. In these cases, no single discovery activity tended to be disproportionately higher than another; rather, all discovery activities tended to be proportionately higher.

Although depositions were not the most frequently used discovery device, they were by far the most expensive part of discovery, accounting for about a third of normal median discovery expenses of about $9,500, and accounting for more than twice as much expense as any other discovery activity. The median expenses per client for each discovery activity was approximately as follows:

What is the Size and Nature of Discovery Problems?

The report states that discovery problems vary more by the nature of the case than by the type of discovery used, and that where a lot of money is at stake, or the issues are personal injury or matters of principle, or the relationships are contentious and the issues complex, there is both more extensive discovery and more problems with discovery. The report notes, however, that there may be more discovery problems in large or complex or contentious cases, simply because there is more discovery.

About half (48%) of lawyers using discovery reported problems in discovery, with plaintiffs' lawyers reporting problems more frequently (58%) than defendants' lawyers (42%). The percentage of lawyers reporting problems in discovery was as follows:

Document production, the discovery activity most widely used by responding lawyers (84%), also generated the most reported discovery problems (44%). The report observed that of all the discovery devices it examined, document production stood out as the most problem-laden; and that while the causes are elusive, the characteristics of complexity and contentiousness are often found in production-problem cases.

The five problems reported most often in document production were:

• failure to answer adequately (28%), with plaintiffs' counsel (33%) complaining more than defense counsel (24%);
• failure to respond in a timely manner (24%), with plaintiffs' and defense counsel complaining about equally;
• vague requests (16%), with defense counsel (20%) complaining more than plaintiffs' counsel (12%);
• excessive number of documents requested (15%), with defense counsel (19%) again complaining more than plaintiffs' counsel (11%); and
• materials provided were excessive or disordered (8%), with plaintiffs' counsel (10%) complaining slightly more than defense counsel (7%). Thus, plaintiffs' counsel were more likely to complain about failure to respond adequately, while defense counsel were more likely to complain that requests were vague or sought an excessive number of documents.

Document production problems increase significantly as the stakes in the cases increase: 36% of lawyers reported problems with stakes at $4,000 to $500,000; 56% with stakes of $500,000 to $2,000,000; and 75% with stakes over $2,000,000. A similar increase in production problems was found as the complexity of the cases increased.

The most frequent problems associated with use of expert witnesses were claims that the disclosures were too brief or incomplete (13%) or too expensive (9%), or that the other party failed to supplement/update expert disclosures (9%).

Depositions were used by 67% of lawyers who reported using discovery, with the median number of individuals deposed being four (with a mean of six). One-fourth of the lawyers reported that only one or two individuals were deposed, while three-fourths reported that not more than seven individuals were deposed.

The most frequent deposition problem reported (by 12% of lawyers) was that too much time was spent on the deposition. The median number of hours spent in all depositions was 10, with the lowest spending no more than five hours and three-fourths spending no more than 24 hours in depositions. The median length of the longest deposition was four hours, with 25% of the longest depositions taking seven or more hours.

Other problems were reported in three areas of deposition conduct: lawyers coaching witnesses (10%); instructing witnesses not to answer (8%); or otherwise acting unreasonably to annoy, embarrass or oppress the deponent or counsel (9%). There was no significant difference in problems reported by plaintiffs' lawyers from those reported by defendants' lawyers, although lawyers in tort cases and civil rights cases (each 50%) reported discovery problems more often than lawyers in contract cases (36%) and all other cases (42%). Lawyers involved in very complex cases reported far more deposition problems (41%) than lawyers handling somewhat complex (24%) or non-complex (22%) cases.

About 55% of responding lawyers attributed discovery problems to intentional delays and complications by either a lawyer or a party, with plaintiffs' lawyers considerably more likely than defense counsel to attribute problems to intentional actions. A lesser percentage attribute discovery problems to lack of client participation, pursuit of disproportionate discovery, or incompetent or inexperienced counsel (as to which nearly twice as many defense counsel attributed problems to plaintiff's counsel as the reverse).

The report tried to identify whether lawyers, clients, judges and others contributed to the identified discovery problems.

Lawyers were asked whether various activities of lawyers and clients were not factors, or were moderate factors, or were major factors, in causing the identified discovery problems. They responded as follows:

Thus, in general, between 45% and 62% of lawyers replied that the listed activities were not at all contributing causes to discovery problems. However, generally between 21% and 29% felt the activities were moderately contributing causes to the problems, and another 17% to 27% felt they were major contributing causes to the problems. Or, collectively, between about 39% and 55% of responding lawyers felt the factors were either a moderate or major contributing cause to the discovery problems, with intentional delays or complications being so considered by 55% of responding lawyers, lack of client cooperation by 46% of responding lawyers, disproportionate discovery by 38% of responding lawyers, and incompetence/inexperience by 41% of lawyers.

The report noted that plaintiffs' lawyers (63%), more often than defense lawyers (47%), attributed discovery problems to intentional acts by a party or attorney. Defense lawyers (52%), however, more often attributed discovery problems to incompetence or inexperience of counsel than did plaintiffs' lawyers (27%).

For 81% of responding lawyers, judges were involved in discovery, but mostly in the planning phases rather than in deciding motions or imposing sanctions. Judicial involvement was generally in holding a conference to consider a discovery plan (57%), to discuss discovery issues (42%), to rule on a discovery motion (25%), or to enforce federal rules limiting the number of interrogatories and depositions. The vast majority of lawyers (83%) reported no problems with the court's management of disclosure or discovery. The few lawyers who had problems generally complained that allowed discovery time was too short, the court was too rigid on deadlines, or discovery motion rulings took too long.

When asked how discovery costs could be reduced, responding lawyers recommended generally increased judicial management and availability; making contradictory changes in the federal initial discovery rule; and controlling attorneys through sanctions and a conduct code. More specifically, they recommended:

When lawyers were asked to identify the one most promising approach of three possibilities to reduce discovery problems, they most strongly identified increased judicial case management (47%) over rule revisions to further control discovery (27%) and changing client/lawyer incentives regarding discovery (26%). Thus, the report concluded that the most promising approach to reducing problems in discovery was to increase judicial case management.

The report provides useful information, including statistics about the frequency of perceived problems in discovery. Some ethical issues associated with those and other discovery problems will be explored in one or more subsequent articles.