This morning, I saw a tweet expressing outrage that a conservative federal judge said yesterday that if it were up to him, he would end discovery in all cases in which less than half a million dollars was at stake. The person expressing outrage claimed that this proposal was being put forward because "justice" in America is reserved for the wealthy. The tweet was an amazing display of just how out to lunch so many on the left truly are.
Discovery is often used by one side to try to bash the other into submission. Let me give you an example:
Some years ago, I represented a company that had installed certain material on a federal project. The material was supposed to be of a certain quality and that was what my client ordered from a very large national supplier. The material was delivered labeled as being of the required quality and two thirds was installed. At that point, the government tested some of the material and found it to be substandard. The government ordered it all ripped out and replaced. My client complied but then sued the supplier for delivering material that did not meet the required standard. There were extra costs incurred of between 2 and 3 million dollars.
We then started a lawsuit against the supplier who was then represented by a very large New York law firm. The supplier's attorney then began a discovery process that they made larger and larger. We had nearly 40 days of depositions, most of which were entirely meaningless. There was all sort of document discovery and interrogatories. There was no way to stop this; the supplier's lawyers just went to town and pushed for more and more discovery, something to which they were entitled under the rules. To put this in context, you need to know that we took one deposition that lasted three hours and looked at certain documents produced by the supplier. Our discovery was about 3% of the total and the supplier took 97% of the total. The expense of the discovery was substantial, and my client had been forced to lay out millions to do the replacement work.
Finally, the discovery ended and we were going to trial. The supplier's attorneys tried another move to delay the trial by bringing in a new party, but at my request, the judge blocked that move.
In the month before trial, the supplier's attorneys suggested settling. I demanded payment in full with interest. The case settled for payment in full with 2/3 of the legal interest. It was a total victory.
The point of the story is that the strategy of the supplier's attorneys was to try to drive my client under by running up the litigation costs to an unsustainable level. It's not an unusual ploy. Indeed, discovery abuses are one of the main problems in civil litigation today.
What this all means is that ending discovery (or severely limiting it) in smaller federal cases would actually take away from rich litigants their ability to use the cost of discovery to win cases by outlasting the adversary. Somehow, the left never sees this. Of course, it is also possible that since the trial attorneys are such strong supporters of the Democrats, it may be just that the left does understand, but can't accept any solution which might discommode their supporters.
Discovery is often used by one side to try to bash the other into submission. Let me give you an example:
Some years ago, I represented a company that had installed certain material on a federal project. The material was supposed to be of a certain quality and that was what my client ordered from a very large national supplier. The material was delivered labeled as being of the required quality and two thirds was installed. At that point, the government tested some of the material and found it to be substandard. The government ordered it all ripped out and replaced. My client complied but then sued the supplier for delivering material that did not meet the required standard. There were extra costs incurred of between 2 and 3 million dollars.
We then started a lawsuit against the supplier who was then represented by a very large New York law firm. The supplier's attorney then began a discovery process that they made larger and larger. We had nearly 40 days of depositions, most of which were entirely meaningless. There was all sort of document discovery and interrogatories. There was no way to stop this; the supplier's lawyers just went to town and pushed for more and more discovery, something to which they were entitled under the rules. To put this in context, you need to know that we took one deposition that lasted three hours and looked at certain documents produced by the supplier. Our discovery was about 3% of the total and the supplier took 97% of the total. The expense of the discovery was substantial, and my client had been forced to lay out millions to do the replacement work.
Finally, the discovery ended and we were going to trial. The supplier's attorneys tried another move to delay the trial by bringing in a new party, but at my request, the judge blocked that move.
In the month before trial, the supplier's attorneys suggested settling. I demanded payment in full with interest. The case settled for payment in full with 2/3 of the legal interest. It was a total victory.
The point of the story is that the strategy of the supplier's attorneys was to try to drive my client under by running up the litigation costs to an unsustainable level. It's not an unusual ploy. Indeed, discovery abuses are one of the main problems in civil litigation today.
What this all means is that ending discovery (or severely limiting it) in smaller federal cases would actually take away from rich litigants their ability to use the cost of discovery to win cases by outlasting the adversary. Somehow, the left never sees this. Of course, it is also possible that since the trial attorneys are such strong supporters of the Democrats, it may be just that the left does understand, but can't accept any solution which might discommode their supporters.
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