What can be
done about Widespread Discovery Abuse?
This is, indeed,
the second most serious problem facing the legal profession. How
can we stop the Paper Wars — countless interrogatories, burdensome
document demands, worthless requests for admissions — and the
motions to compel discovery, the motions for sanctions and the motions
for protective orders which invariably result?
Some courts
have tried restrictions in their local rules (limiting the number
of interrogatories requiring pre-motion conferences between attorneys,
etc.). Others have imposed fines against the attorney involved in
needless discovery disputes. A few have toyed with more exotic sanctions
— such as the rack, the Iron Maiden, and public flogging.
But no one
has been as diabolical as Judge Edward R. Becker, who imposed the
"Time Out Rule" in Zenith Radio Corp. v. Matsushita
Electric Industrial Co., 478 F. Sup. 889, 959 (E.D. Pa. 1971).
In this 71-page opinion in a complex anti-trust case, Judge Becker
first disposed of pending motions and entered a comprehensive pretrial
order setting deadlines for completion of discovery, expert witness
dispositions, pretrials, trial and all other conceivable aspects
of the case. Then, seemingly as an afterthought, he added the "Time
Out Rule as Appendix B:
"Time
Out Rule"
"A. Statement of Rule.
For no good cause shown each side will be entitled to three time
outs between now and the date of trial. A time out is defined as
a one-week period in which no discovery can be served, all deadlines
are postponed and counsel can generally goof off.
1. The procedure for calling a time out will be as follows:
Both plaintiffs and defendants will designate one individual as
the official time out persons (hereinafter referred to as the "Designated
Whistler"). The designated whistler will be issued a whistle
from the case liaison logistics committee which will be strung around
his, her, or its neck. When a time out is desired, the designated
whistler will go to the offices of opposing lead counsel (See XVLE.)
and blow the whistle three times. Thereafter there will be a one-week
time out.
2. As stated above, each side is entitled to three time outs. However
during the period of the two month warning (see B below) each side
will be entitled to only one time out, providing that side still
has remaining at least one time out.
3. Time outs must not be called on two consecutive one-week periods.
That is there must be an intervening week between time out periods.
This rule is designated to prevent counsel from spending more than
one week of their time with their family, friends, partners and
associates.
4. As stated above, each side will be entitled to only three time
outs. Any attempt by any side to exceed this three time out limit
will be regarded by the Court as a serious infraction of the rules
(hereinafter 'illegal use of whistle'). The sanction for illegal
use of whistle will be that such counsel attempting to exceed the
three time outs will have his, her or its desk moved five yards
(in the event of a non-flagrant violation) or 15 yards (in the event
of a flagrant violation) further from the jury box at trial.
"B. Two Month Warning.
As stated above, there will be a two-month warning. Such a two-month
warning will be called by the Court two months prior to trial. At
this point there will be a three day stoppage of the clock in which
all counsel will be required to get their personal affairs in order.
Personal affairs will include such items as Last Will and Testament,
final instructions to spouse and family, arrangements for publication
of memoirs and other less important details. During the two month
warning, the clock will run continuously except for time outs described
in A above." (478 F. Supp. at 959-60).
And what about the lack of discovery abuse? Even this can cause
problems, as Judge Gerald J. Weber experienced in Uhl v. CBS,
Inc., 476 F. Supp. 1134 (W.D. Pa. 1979) Uhl sued CBS because
a television documentary about hunting, "The Guns of August,"
portrayed Uhl as an unsportsmanlike hunter - the segment in question
created the false impression that Uhl shot a goose that was on the
ground, rather than flying -- thereby disparaging and disgracing
him "in the eyes of his fellow hunters and the public at large."
The jury found in favor of the plaintiff and awarded him nominal
damages of $1. In its motion for judgment n.o.v.,' CBS argued that
the plaintiff had failed to present depositions of the persons involved
in the film production to prove the subjective state of mind of
CBS and its agents by clear and convincing proof." Judge Weber
responded with a "strongly felt personal observation":
"... This court's interpretation of the argument was that plaintiff's
case should be dismissed at the end of his evidence because he had
not indulged himself in a wave of discovery depositions of defendant's
personnel involved in the filming, production and editing of
the film. It was argued that such discovery was essential to determine
the subjective state of mind of dependant's employees. The court
had fleeting visions of deponents surrounded by lawyers, with psychoanalysts
at their elbows, and wired to polygraph machines while being so
interrogated. The court curtly informed counsel that cases could
be adequately prepared and tried without discovery depositions,
and in fact were frequently so tried within the memory of some present
members of the bench and bar. The implication of this argument
to the court was that a poor man or even a man of some means has
no business bringing litigation in court unless he can afford the
services of a large double-breasted law firm with platoons of young
credit card carrying associates who can fan out all over the country
on a search-and-depose mission. The plaintiff is a young workingman
living in a small town. His attorney is a young sole practitioner
engaged in general law practice in the county seat of a rural Pennsylvania
county. To suggest that they cannot have their day in court without
the orgy of discovery that now attends most lawsuits in federal
court between well-heeled corporate litigants is indeed a bleak
prospect for American justice..." (476 E Supp. at 1141).
Judge Weber then concluded the opinion by complimenting the attorneys
for the "prompt, efficient and mutually courteous manner"
in which the case was tried.
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