We earn our hourly fees the old-fashioned way
Anyone who has been involved in a business lawsuit knows that a lot of time and money is spent fighting over what documents each side must produce.
You send a request for production that includes variations on the theme of “please produce documents supporting your claim that my client did X.” Your adversaries object. You object to their objections. You “confer” with opposing counsel.
You file a motion to compel. They file a response. You go to a hearing where the judge says “I don’t have time for discovery disputes” and tells you to go out in the hall and work it out. Eventually, the judge rules.
After the hearing, you argue with opposing counsel with the wording of the order. You go back to court for the judge to resolve that dispute. The judge finally signs an order. A few weeks later the other side produces documents, but they don’t include all the documents you asked for. You file another motion.
While all this is happening, the other side requests documents from you. You object. Opposing counsel calls you and . . . well, you get the idea.
Does it have to be this hard?
When you serve a request for production of documents, you’re essentially looking for two kinds of documents: good documents and bad documents. Good documents—for the opposing side—are the documents they are going to use to prove their case. Bad documents are the ones you’re going to use against them to prove your case.
Clients spend a lot of time and money essentially getting the other side to produce its good documents and its bad documents. And the proliferation of emails has made it worse. The only ones left smiling are the law firm partners reviewing the billable hours for the month.
Couldn’t we simplify and just have a rule that says “each party must produce its good documents and its bad documents in 30 days upon request”?
Yes and no. A rule requiring a party to produce its bad documents—the documents that hurt its case—would just not be workable. But a rule requiring production of the documents a party plans to use to prove its case? That sounds sensible.
Federalization of the Texas Rules of Civil Procedure?
Texas may soon have just such a rule. The Texas Supreme Court Advisory Committee is considering significant changes to the discovery rules in the Texas Rules of Civil Procedure. One of those changes would require routine disclosure of the following:
Sound familiar, litigators? This is of course what the Federal Rules of Civil Procedure already require in a party’s “initial disclosures.”
I’ve never understood the point of the alternative to provide a “description” of the documents. I’m always tempted to respond “Plaintiff is in possession of white paper documents with black printing located in its computers and file cabinets.” Even a more reasonable description, such as “emails between the parties regarding the dispute at issue, located on Plaintiff’s email server,” is practically worthless. If you see some value to this alternative, please tell me why.
But we must not carp too much. Overall, this change to the Texas Rules would cut the time lawyers spend arguing over requests for production that amount to saying “just give me the documents you’re going to use to prove your case.”
Some lawyers won’t like this. Those of a certain vintage will say, “Back in my day, the partners would hand you a file on Friday and say go try this case on Monday. It was trial by ambush. We never knew what documents the other side had, and we liked it!”
Does that sound old fashioned? Well, if you’re one of the lawyers saying “we used to have to serve dozens of requests for production and file a motion to compel, just to get the documents the other side planned to use,” you may sound the same way to the generation of lawyers coming up now.
Another proposed change to the Texas discovery rules could also save money, and also has a Federal flavor.
Currently, Texas lawyers have to be careful any time they communicate in writing with a hired expert witness, because those communications are discoverable. But this proposed rule would change that:
Sound familiar again? This would match a change made to the Federal Rules in 2010.
Some of you won’t like this. You smell a rat every time you see an expert designation. You want to see the emails where the lawyer tells the expert what to say. You fight for the first draft of the expert’s report so you can show he changed opinions under pressure from the client.
“What happened to transparency?” you say. If this rule change happens, the lawyer could practically write the report for the expert, and no one would ever know. The early drafts of the expert report will be like Donald Trump’s tax returns.
There is some merit to this critique, but I think it largely misses the mark. For one thing, telling the expert what to say probably doesn’t happen as often as people think.
It’s an old saw that hired experts will say whatever the hiring lawyer tells them to say. As a litigator who sometimes has to deal with difficult experts, my response is “I wish.” Try persuading a Ph.D. who charges $500/hour that he needs to tweak his methodology. Truth is, most experts who are good enough to be hired have too much pride to let a mere J.D. tell them what to say.
But there is a simpler problem with the critique of exempting attorney-expert communications from discovery. The reality is that under the current Texas rules you hardly ever get any good dirt on the expert anyway.
Litigators know their communications with testifying experts are discoverable, and they act accordingly. They’re not going to email the expert saying “I need you to change part of your report.” Lawyers often twist themselves in knots to make sure there are no documents showing the evolution of the expert’s opinions and report. They scold the expert if he even thinks of jotting down a few notes on a legal pad.
And therein lies the problem. Jumping through hoops to avoid leaving a paper trail of attorney-expert communications costs time and money. Do we really want a rule that incentivizes a lawyer to sit and look over the expert’s shoulder while he types revisions to his report? Better to save that time and let lawyers and experts email each other all they want, without fear of a it’s going to look.
This was basically the thinking when the corresponding Federal rule was changed. And on balance, that thinking was right.
Partners at big law firms may wonder how they are going to make up the billable hours lost because of these changes. But don’t worry. They’ll find a way.
*Update: On February 11, 2019, the Discovery Subcommittee transmitted its recommended rewrite of the discovery rules to the Supreme Court Advisory Committee. See the Subcommittee’s cover letter.
*2nd Update: On August 21, 2020, the Texas Supreme Court approved some of the proposed changes, including initial disclosures. But it looks like SCOTX did not approve the proposed exemption for testifying expert communications. Stay tuned for analysis.
Zach Wolfe (email@example.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.