Update (April 14, 2011): Those interested in e-discovery and how the sanctions motion played out in the case, described below, will find this (Court Order on Motion for Sanctions) and this (e-Discovery protocol) of interest.
Original Post (March 30, 2011): What percentage of civil litigation, in terms of time and money, is spent “fighting about the fighting,” or disagreeing, essentially, on the appropriate procedures to govern our dispute resolution process?
Unfortunately for a large number of civil litigants in the United States, in a large number of cases, the answer is quite a high percentage. (The ACLU v. TiZA case comes to mind.) Clients and courts pay the price (directly or indirectly, to lawyers).
Why? The answer has to vary from case to case but the evil culprits may be (1) agency cost (the more discovery disputes, the more money hourly-billing lawyers make) (the cynical view), (2) “meta-litigation” (if one’s case has infirmities, legal or factual, one might shore it up by opening up a new line of attack: litigation about litigation conduct) (the meta-cynical view), (3) bad clients (whether due to ignorance of the process (this dove-tails with evil culprit #1) or actual conscious wrong-doing by a party in litigation) (the lawyers’ alibi).
A challenge for judges — and a significant challenge at that — is often deciding which culprit is responsible.
Linked, here and here, are two briefs from the Multifeeder Technology Company vs British Confectionary Company, et al. before the U.S. District Court for the District of Minnesota (Tunheim, J.) for and against sanctions for alleged discovery misconduct.
(Minnesota Litigator has recently noted that Judge Boylan does not shy away from serious discovery sanctions under appropriate circumstances.)