Documentary Discovery: How It Should Look
A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.
- Justice Brown of the Ontario Court of Appeal in “A 5-Point Action Plan to Get the Civil Justice System Moving Back in the Direction of Achieving its Fundamental Goal – The Fair, Timely and Cost-Effective Determinations of Civil Cases on their Merit”
The culture of creating and litigating peripheral disputes instead of going to trial has caused documentary discovery to go awry. Many lawyers no longer focus on which documents are truly needed to establish the elements of their claim or defence. This unfocused discovery “designed to uncover facts that relate only tangentially, if at all, to… the theory of the case” wastes time, money, and energy (Larry Pozner and Roger Dodd state in Cross-Examination: Science and Techniques).
To recalibrate documentary discovery, Justice Brown recommends in “A 5-Point Action Plan” that we narrow the obligation to produce documents. In particular, he suggests that parties’ limit their requests to the documents that they intend to rely upon at trial or to the documents that the other side would rely upon at trial to support its claim or defence:
[42] To achieve that re-orientation, we need to re-jig the timing of mandatory documentary disclosure so that it reflects the link between the materiality of a document to the adjudication of an issue at trial. To that end:
(i) The plaintiff/applicant should deliver with its claim or notice of application the documents upon which it intends to rely at the trial or final hearing;
(ii) The defendant/respondent should deliver with its defence or responding materials (i) the documents upon which it intends to rely at trial together with (ii) those documents which the defendant should reasonably foresee would assist the plaintiff in establishing its case;
(iii) The plaintiff/applicant would be required to deliver with its reply (or in any event of a reply) those documents which the plaintiff should reasonably foresee would assist the defendant in establishing its defence; and,
(iv) Each side could then make one or two rounds of post-pleading requests for further documents…
[44] To those raised in the traditional adversarial system, requiring a party to produce documents which it should reasonably foresee would assist its opposite party at trial might seem like unusual phrasing. But, the essence of such a production obligation would not differ from the current obligation to produce “relevant” documents, for documents which would assist the other side at trial by definition would be relevant…
[49] By requiring the parties to produce the material trial-related documents with their pleadings, arguably one could narrow and focus subsequent rounds of production requests and reduce e-discovery costs…limit the number of discoverable issues to those which really will count at trial and also restrict the scope of e-mail discovery to those issues, as well as to the handful of custodians who actually had something to do with those issues.
Justice Brown’s article should be mandatory reading for every law student, civil litigator, and Rules of Civil Procedure drafter. It is crucial that we rein in ballooning, disproportionate requests for documents that relate only tangentially to the case. Failing to do so, in the words of Justice Brown, enables documentary discovery to become akin to seppuku, a form of ritual suicide.
Great post Heather! I completely agree with you, Messrs. Pozner and Dodd and Justice Brown.
A greater emphasis on trials as opposed to pre-trial wrangling could unclog Ontario’s Court system. Cases in progress would transition to judgments and settlements. Settlement discussions are a whole lot different with a trial on the horizon.
Those kinds of cultures in systems arise due to economic forces, and no amount of wishful thinking or stern logic will overcome those forces. You can only change behaviour if you change the incentive structure. As long as there is money in endless procedural wrangling, there will be endless procedural wrangling – document discovery and every other kind. When it also generates legal advantage, you really have no hope of seeing it change.
The economic forces that are relevant when looking at this kind of thing include (but may not be limited to): a) the lawyer gets paid more the more complicated and conflicted things get, with no penalty, b) most corporate client personnel are also on paid time so in the vast majority of cases, the dance of dawdling doesn’t bother them either, and c) lawyer fees are tax deductible for corporations, so the big clients don’t care much that their lawyers are wasting their time.
Add to that the forces acting on the court itself, which are the same as in any bureaucratic system where empires are built, and rationale for increased funding created, by not solving problems rather than by solving them.
Heck, there’s a whole document reading industry within law. That’s a beast that needs feeding.
It’s a complicated set of perverse incentives that only the injection of disincentives, coupled with new incentives to act differently, can correct. The problem is that no one INSIDE the system has an incentive to come up with solutions. While I appreciate that commentary like this is written with the best of intentions, and while I know that pointing to symptoms is fun; and demanding change can create personal status, respect of peers, and garner useful attention, but no one inside a system is likely to actually name or fix the core problem, simply because all of them are in some small way part of the problem themselves.
Lawyers are good at law, and law is a challenging field, but I’m actually continually perturbed to observe how little of their capacity for nuanced analysis they bring to the task of legal system reform and access to justice. For system redesign, lawyers and judges need to hire people who are as good at organizational behaviour and system dynamics as lawyers are at law. Full disclosure: that’s my field – but no conflict: I’m not in the job market.
You are right that people with a behavioural economic background are better able to contribute than lawyers given their understanding of incentives and common errors in thinking.
However, change is unlikely to come without pressure from people both inside and outside the system. Perhaps the largest wake up call from outside the system will come from technology that displaces core aspects of litigators’ jobs and removes the hassles associated with a complex court system, making our current antiquated court system vulnerable to becoming obsolete.
Yes, no analyst can diagnose and cure the legal system without the deep understanding of its operations that only insiders can bring. Just as no lawyer can litigate for anyone without tapping into their knowledge :-)
Unfortunately the court system cannot become obsolete because it is, well, the court system. It is only at risk of becoming either irrelevant to society, or corrupt. However, you are quite right that litigators can become obsolete: a line that I thought was particularly interesting in Justice Brown’s first paper was his observation that the Bar needed to look to its “own self-preservation.”
I think it is a mistake to equate paper with being antiquated. Being old enough to have known the paper world and still young enough to pretty fully comprehend the electronic one, I would say that technology is a bit of a false god; it often only allows systems to do things wrong faster. That said, you are correct about its ability to displace litigators, but it is at the front end of litigators’ jobs that this displacement is occurring – its ability to connect people with each other and with information is astronomical and reduces litigators to a supporting role. What is endemic to lawyers’ discussions of system reform and access to justice is that most of their contributions presume their own continued presence and dominance, and as such more often have a gatekeeping effect than a reforming one.
It’s my view that productive reform conversations begin with the realization that people want to patronize judges, not lawyers. And as such, it is only as judges engage in the dialogue that the threads can be drawn between the actual needs of the people and the role that the court system should play, and how the law itself should evolve. From there, the role of lawyers can evolve – or rather, the new opportunities for the law business will become evident.
Sorry; that has come a long way from the issue of document discovery, but I do appreciate you having drawn attention to Justice Brown’s work. He is a very interesting thinker and has identified a number of the lynchpins of the system’s dysfunction.