• August 2, 2013
Photo by Emilio Labrador

Photo by Emilio Labrador

Some inventions cannot be patented because they are too obvious.  The genius who figured out that it works better to put the horse IN FRONT of the cart gave away that intellectual property to the rest of us.  She probably did not ever make a penny, but it is a most excellent concept.

Civil litigators may want to take it to heart when they object to discovery requests based on the position that the adversary’s claims or defenses have no merit and therefore, the adversary is not entitled to the discovery he seeks.

But that’s crazy, right?  Would someone really argue that?  I wonder if that might work in a criminal investigation (“I did not do the crime. Therefore, your warrant to search my house is invalid”?)

Not only are these arguments sometimes made. They are made quite frequently.  Sometimes, they are even unsuccessfully appealed.

That being said, the victors in such discovery disputes would be wise to celebrate their wins with a modest slice of humble pie.  Very often, the spoils of victory in these discovery disputes are nugatory.  One of the many challenges in the life of the civil litigator is winning hard-fought discovery battles only to discover, on review of the compelled discovery responses, that the other side seems to have been fighting for fighting’s sake.  The responses sometimes have no value.  Thus the opposition to simply answering the discovery in the first instance can be hard to fathom.  (Psyop? War of attrition? Agency cost (aka “churn baby churn”)?)

(Also, humble pie might be warranted because sometimes the opponent to the discovery is just right, of course.  The party propounding the discovery is headed for inevitable defeat and nothing she seeks from her adversary will avoid the case’s ultimate disposition.  But, if this were really so clear-cut, why would the propounding party be spending all the money on the case in the first place and why would the responding party spend a pile of money resisting the discovery?)

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