• March 1, 2012

A $200,000 garden variety commercial dispute between two small-to-medium sized businesses (annual revenues of $5 million-$50 million) is too much money to ignore but  may be too little to sue over, given the costs of civil litigation.

What are a litigant and its lawyers to do?  First, the parties, their lawyers, and court together should set a schedule and plan for the case proportional to the amount at risk.  For example, if depositions, all told, cost somewhere around $3,000-$10,000/each (and they can easily be several times that maximum depending on the circumstances), presumably twenty depositions would be inappropriate in such a case.  Also, why bother with “document requests,” “interrogatories,” and such “written discovery”?  Can’t the parties just collect and exchange at least the core documents related to such a dispute which, by definition, should be fairly narrow in scope?

In a world of mutual trust and cooperation, yes and, in fact, it is fairly common.

But the litigator who does business on a hand-shake might later regret it.

As is evident from the “brief fragment” attached and the cited case, some courts will “applaud” a litigant for engaging in less expensive informal discovery and, in the same sentence, fault the litigant for having done so rather than serving formal discovery.

The author just litigated a motion to compel in which his adversary defended the motion with this “Nice Guys Should Finish Last” argument.  The matter was resolved at the hearing on the motion to the movant’s satisfaction.  However, earlier savings in the case via informal discovery were to some extent wiped away by the later motion practice.

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