Changes to the Texas discovery rules go into effect January 1, 2021. I wrote about some of these proposed changes in Proposed Changes to Texas Discovery Rules Threaten Law Firm Revenue. The new Texas Rules will now have initial disclosures and other features more like the Federal Rules.
The changes are partly intended to address an obvious problem: the discovery process is too expensive.
If you’re a lawyer who litigates, or just a business person who has been involved in litigation, you know that civil litigation is very expensive. And most of that expense is for document discovery, depositions, and other pretrial discovery.
So why is this process so expensive?
One possible answer: emails. Today most discovery is about emails and other documents that exist in electronic form.
This is a change so big we sometimes don’t even notice it. When I started practicing law in Texas 23 years ago, most of the discovery was about old-fashioned paper. In the first big case I worked on, would you believe there were zero emails produced in discovery? Now, most of the documents produced in a lawsuit are emails and other documents found in electronic form. And this has made discovery more expensive.
On the other hand, you could make a case that e-discovery hasn’t fundamentally changed discovery. It was already expensive. The term “Rambo tactics” emerged from discovery battles in the 1980s, before e-discovery was even a thing. You could argue that email just exacerbated a problem that already existed.
So aside from email, why is discovery so expensive?
There’s no single answer, but in my experience, it comes down to three key things.
First, I hate to say it, but there are some bad lawyers out there, and all else being equal, bad lawyers tend to be more obstructive.
Second, even good lawyers often engage in obstructive tactics in discovery.
Third, judges don’t like to get their hands dirty dealing with discovery disputes.
Notice what I left out. I didn’t say discovery is too expensive because the Texas Rules of Civil Procedure need to be changed.
That’s why I don’t expect changes to those Rules to have much impact on the cost of discovery. It’s not like discovery is going to be too expensive if you get 25 interrogatories, but suddenly manageable if you only get 15. Limits on the number of depositions could have more of an impact, but even there, I think fights over written discovery are the bigger culprit, and I don’t see how limits on the amount of discovery will have much impact on that problem.
To understand better, let’s drill down on the three things that make discovery expensive, using my favorite hypothetical lawsuit, Paula Payne Windows v. Dawn Davis, to illustrate.
Suppose Paula Payne Windows sues Dawn Davis and her new employer, Real Cheap Windows, claiming that Dawn breached her non-compete and misappropriated trade secrets. Let’s say the lawyers on both sides are less than top notch.
If the lawyers are not so good, you are likely to get two things in discovery: discovery requests that are overbroad and poorly written, and discovery responses that simply repeat a bunch of formulaic objections. And even with good lawyers, you may still get some of this.
Let’s look at some examples.
Example 1: the overbroad request for production
Paula Payne Windows serves a request for production that seeks “all documents relating to sales of windows to customers of Paula Payne Windows.”
You see this kind of request a lot, in all kinds of litigation, and it is usually objectionable, for two reasons.
First, it is too indefinite. What the heck does “relating to” mean? I mean, I know what it means generally, but it’s such a broad and vague term. How do I decide whether a particular document “relates to” sales of windows? It’s just too fuzzy to provide meaningful guidance.
Second, the request is overbroad. In other words, it is not reasonably tailored to obtain relevant documents, while excluding irrelevant documents. It doesn’t even have a date range. And even if it was limited to a relevant time period, there are likely hundreds of documents, if not more, that “relate to” sales of windows to Real Cheap Windows, and most of those documents will have little or no relevance to the issues in dispute. That also means the request is probably “unduly burdensome,” another common objection.
Put it this way: If Paula Payne Windows gets the invoices identifying the sales, does it really need every single email with every customer about the sales?
Example 2: boilerplate objections to a reasonable request for production
Lest you think that obstructive tactics are limited to requesting too much discovery, let me assure you, there are plenty of obstructive responses as well.
Suppose Paula Payne Windows serves this request for production instead: “Your invoices reflecting sales of windows to customers of Paula Payne Windows from the time you hired Dawn Davis to the present.”
Is this proper? Of course, it depends on the circumstances, and every case is different, but in a typical non-compete lawsuit, this would usually be a proper, reasonably tailored request. So let’s assume this is a well-drafted request.
Will the response be “please see attached invoices”? [Litigators laugh here.]
Not likely. First, you’re probably going to get a bunch of “general” objections that supposedly apply to every request for production. Sometimes these go on for pages. They may include objections like, “Defendants object to each request to the extent that it exceeds the permissible scope of discovery.” I joked about this sort of thing in Agree on These Litigation Rules to Level the Playing Field.
Usually, most of these general objections are, pardon my French, bullshit.
Now, don’t get me wrong, there are some “general” responses that I typically include in my responses, but I keep it to a minimum, and I try to include only general responses that really do apply to each request.
In contrast, most “general objections” I see don’t legitimately apply to every request, which makes them obstructive and unnecessary.
But that’s not all. In response to your specific request, you are likely to get something like this:
These are representative examples of “boilerplate” objections. By boilerplate, I mean the lawyer probably just did a cut and paste of a bunch of objections, rather than narrowly tailoring the objections to fit the requests.
This is usually the result of laziness, or sharp tactics, or both.
It’s lazy because it’s easier to just cut and paste the same objections over and over, rather than really thinking through what is objectionable about the request.
But it can also be a deliberate tactic. Even a good lawyer might choose to include a bunch of objections in every response. One rationale is that you don’t want to fall into the trap of waiving an objection that you might later need to argue to the judge. Another, more cynical rationale is that everybody does this, and you don’t want to make it too easy on the other side to get the documents they need. Why should you unilaterally disarm?
You see the same thing with another type of discovery request, the interrogatory.
Example 3: boilerplate objections to a reasonable interrogatory
An interrogatory is a written question that the responding party has to answer in writing, signed under oath by the responding party or its representative.
Here’s how I might draft an interrogatory if I represent Dawn Davis: “Please describe in reasonable detail the alleged trade secrets you contend Dawn Davis misappropriated.”
This is exactly the kind of question that interrogatories were designed for. So is the lawyer for Paula Payne Windows likely to respond with, “Dawn Davis misappropriated the following trade secrets . . .”?
That would be a pleasant surprise. No, the response is more likely to look like this:
It’s hard to see how these objections are warranted. The interrogatory expressly asked for reasonable detail. So the objection that the interrogatory improperly requires the responding party to “marshal evidence” just doesn’t apply here.
Rule 197 of the Texas Rules of Civil Procedure expressly provides that an interrogatory “may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses.” In other words, the rule allows reasonable “contention” interrogatories.
In fairness, maybe the objections were made like that because the responding attorney is so accustomed to poorly drafted interrogatories. Let’s look at an example of that.
Example 4: the unduly burdensome interrogatory
Litigators have all seen this kind of interrogatory: “Please state all facts supporting your contention that Dawn Davis misappropriated trade secrets from Paula Payne Windows.”
Here, the problem is not so much that the request is irrelevant or overbroad. On the contrary, it is expressly limited to relevant facts supporting a specific claim made by one of the parties to the lawsuit.
The problem is that requiring the responding party to state all facts supporting the contention would just be too burdensome.
That’s why Texas Rule 197 specifically says “interrogatories may not be used to require the responding party to marshal all of its available proof.”
I’ll repeat: interrogatories are not for requiring the other side to marshal all its evidence. That’s what a “no evidence” motion for summary judgment is for. [rim shot]
But seriously, Rule 197 couldn’t be more clear about this. The comment to the rule says that “interrogatories that ask a party to state all legal and factual assertions are improper.” So an interrogatory that asks for “all facts” is almost always objectionable.
Yet people still draft interrogatories that way. Why? Especially when you know the responding party is just going to object.
Again, I think laziness is the main reason. And maybe also a cynical view that says it doesn’t matter that much how you draft it, because the other side is just going to object anyway. Plus, even if you have to file a motion to compel, it’s unlikely the judge will get down into the weeds of how the interrogatory was worded.
Ah, judges. The other piece of the puzzle.
How judges typically respond to obstructive discovery tactics
How do judges usually respond to requests that are too broad, or objections that are too obstructive?
I can tell you exactly how most judges respond. Picture a summer vacation in the family station wagon, let’s say in the 1970s. You’re one of three kids, sitting in the middle, bare legs sticking to the vinyl seat. Cigarette burning in the ash tray up front. Your brother in his shorts and tube socks keeps invading your space. “Mommy, Johnny keeps touching me!” “That’s a lie, I did not!” “Yes, you did!”
What would Mommy or Daddy say? “If you kids don’t shut up and behave, I swear to God, I’m going to pull this car over right now and give you both a spanking!” (I mean back in the day, of course.)
Did Mommy and Daddy care who started it? Did they care who was right and who was wrong? No, they just didn’t want to be bothered.
And that, my friends, is why discovery is so expensive.
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.