• March 21, 2018

Ouroboros: The Self-Devouring Snake

There is a significant risk in our civil litigation system of legal disputes “flipping upside-down.” We use the expression as it is used in the context of mortgage lending: after the 2008 mortgage meltdown, the debt attached to a property (i.e., the mortgage loans) exceeded the value of the properties in many cases. This is disastrous for everyone who has a financial interest involved.

In the context of civil litigation, being “upside down” means the litigation costs exceed the amount in dispute.

Civil litigators will undoubtedly disagree what the minimum amount at stake in U.S. litigation is below which the litigants are guaranteed to end up “upside down.”

But we can all agree that fights about where depositions should be taken, about the order of depositions, about the scope of questioning of a corporate-designated witness, about the completeness of discovery responses or document productions — that is, disputes about the dispute resolution process itself — increase expense and raise the risk of a dispute’s flipping upside down.

It is therefore totally understandable that courts are quite resistant to what they call “discovery about discovery.”

Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) is frequently cited and quoted by courts:

“Speculation that there is more evidence in a party’s possession or control will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end.” (internal ellipsis removed).

This, of course, poses a significant challenge to plaintiffs’ lawyers, in particular, but really to all civil litigants seeking discovery from an adversary. Courts bar their investigation into what efforts the adversary undertook to respond to discovery. This plainly¬†incentivizes obstruction and misconduct by both lawyers and their clients. But the bar is rooted in reason — to avoid the¬†self-destructing downward spiral of disputes about disputes.

[Here, linked, is an example of a 2017 case where the plaintiff had strong suspicions of discovery wrong-doing by his adversary but U.S. Mag. Judge David T. Schiltz (D. Minn.) was unconvinced.]

Practice pointer: If you suspect discovery misconduct through obstruction or inadequate discovery responses and you seek judicial intervention to compel disclosure of an adversary’s conduct in discovery, you need to recognize that courts often start with a presumption of honesty and good faith in favor of your adversary.

You will probably need some evidence — something more than, “C’mon. Really? These are all the documents? We don’t believe you.” — to prompt courts to overcome their distaste and misgivings about “discovery about discovery” and order supplemental discovery responses.

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