The Inelegant Art of Scorched Earth Discovery

henry-horenstein-monkey-holding-camera

[This article was previously published in the November 2, 2014 issue of California Litigation]

“Believe it or not, the composition and layout of some of my images fall precisely . . . within the Golden Ratio!” Henri Cartier-Bresson

“I love the smell of napalm in the morning.” -Lt. Col. Kilgore, Apocalypse Now

When I was a young man, my father, a professional cinematographer, taught me the basics of photography. We worked in black and white, with his two cameras: a gracefully aging twin-lens Rolleiflex and a Nikon viewfinder that, even then, was already “vintage.” I attempted portraits of our Great Dane, architectural studies of our house, and still life compositions of houseplants. We even built a first rate darkroom in our basement. Though he could at times be a complicated, difficult man, I hold fond memories of the time spent with my father learning photography.

One lesson I vividly recall was his early counsel against recklessly burning through film in the gamble that I might get a single decent shot. “Any idiot can snap a hundred pictures,” he would say, a good cameraman takes his time, measures the exposure, and composes the shot.

It is interesting how rudimentary lessons we are taught in the context of one discipline often translate well to another. Here I’m thinking about the litigator’s craft. We have at our disposal a wide arsenal with which to conduct discovery, the core activity of building a case or developing a defense. Yet, just as “any idiot” with a camera and a motor drive (that relic from a bygone era in photography that advanced film with such alarming speed and a satisfying, if not utterly thrilling, sound — I acquired one for the brilliant whirring noise alone) could snap off perhaps a hundred shots in a single minute, hoping for just one good photograph, any lawyer deserving that “i”-word label can recklessly avail himself of the entire arsenal of discovery tools, hundreds of interrogatories, admissions and document requests, in the vain search for a single useful item of evidence.

Now, if that single item of evidence wins the case or appreciably improves a client’s bargaining position, it could be worth it, but only if the evidentiary value is not outweighed by the time, corresponding expense, and potential heartache of the ruthless search. But, like a reckless shutterbug who fails to appreciate the beauty of celluloid economy (anybody remember film?), it seems that many lawyers lack the experience, wisdom or restraint to recognize when the wasted time and expense of “scorched earth” style discovery will vastly outweigh any benefits.

Readers of my blog know that, when trying to sketch an image of professional incompetence, I often trot out an earlier iteration of myself as a dashing model of brazen, inexperienced ineptitude. Because it sweetens a bitter pill, I’ll do so again here. As a young grunt toiling at an insurance defense firm, I was often tasked with preparing written discovery, a job I took seriously. Probably every litigator practicing in California state courts knows there is a statutory limit to the number of interrogatories and requests for admission permitted under our state’s Code of Civil Procedure: 35. But, let’s face it, if you’re a second-year associate bent on Absolutely Annihilating the other side, 35 interrogatories is not enough. Oh, no. That’s not nearly enough. Fortunately, for eager young would-be Ninja Assassin litigators, the California Code allows us to serve an essentially unlimited number of interrogatories or RFAs, provided we include a declaration affirming the extra discovery is “warranted” because of the “complexity or the quantity of the existing and potential issues in the case,” the “financial burden on a party entailed in conducting the discovery by oral deposition,” or propounding burdensome written discovery makes sense because it affords a responder “the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” Well, of course my 135 or so handcrafted, “wait ’til they have to answer these babies,” special interrogatories were always “warranted.” Why? Because I swore in a declaration that they were. Quod erat demonstrandum.

Before you conclude that 135 special interrogatories could have in any way been “warranted” because of the “complexity or the quantity of the existing and potential issues” in most of my cases, let me dispel you of this notion. We weren’t litigating over the patent to an iPhone component, or the copyright to Coming To America. These were typically cases about whether the design of a product hurt someone. While it’s true the issues were more complicated than “What was the color of that banana you slipped on?” the universe of relevant, discoverable evidence was not infinite. But I didn’t see it that way.

So I marched ahead with my flurry of interrogatories. Thirty or so days later, I received pages and pages of nonsense. Boilerplate objections, mostly, with the occasional substantive morsel. Few readers will be surprised to learn that I rarely — actually never — unearthed a detail with hundreds of discovery requests that I couldn’t just as easily have learned with thirty-five or fewer interrogatories. With interrogatories, it was not just a question of quantity. I rarely gave any thought back then to timing of interrogatories, particularly contention interrogatories. I did not, for example, consider that asking many of the same questions by interrogatory that I would later ask in deposition was simply creating an opportunity for my opponent to educate his client how to respond when the same questions were later asked on the record. We all know that lawyers, not clients, answer interrogatories.

I have since become a bigger fan of depositions over contention interrogatories as a substantive discovery tool, in which case asking the same question twice, in two different formats, is just a waste of time of paper. That’s not to say I didn’t also occasionally overdo it with depositions. After all, I reasoned, why dispatch an investigator to interview a peripheral witness to see if she had anything important to say, when I could spend thousands of my client’s dollars and inconvenience everyone by putting them under oath and creating a record?

Who gains and who loses with my old “shotgun” approach? The only winner in this style of discovery could be the lawyers, since discovery is second only to trial preparation as the most expensive aspect of any case. Clients don’t gain, since they’re presumably financing the fact-finding exercise. Already clogged courts grow even more burdened with time-consuming discovery disputes. Ultimately, even lawyers will lose in the long run, as clients ultimately migrate to lawyers and firms that make efficiency a priority.

Practicalities aside, however, I want to suggest there is a larger reason to temper the urge to litigate with a flamethrower, leaving the ground scorched, the parties depleted and parched. It is this. Back when my father and I were toiling away with viewfinders and light meters, he wasn’t so much worried about the quantity of film I would burn (though that was not completely inconsequential). Rather, his goal was to shape me into a better photographer. One who acts more like a serious artist, who plans and composes, who takes care. This translates easily to our profession. As litigators practicing our craft, we should remember that we aren’t paid handsomely to generate make-work. There is always a goal to discovery. We are trying to unearth evidence that is not only admissible, but also useful. In this instance, less can yield the same or more — and better.

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