IT’S TIME TO FIX OUR BROKEN DISCOVERY CIVIL CULTURE
Written by Hon. Lawrence P. Riff*
Oh no! Here comes another judge handwringing about civil discovery disputes. What on earth is there new to say on this dismal subject? Short answer: Nothing new.
But still, plenty to say. This author â now in his 40th year in the law world having played the part of in-house counsel, law firm associate, law firm partner, law firm practice group leader, ABOTA-member trial lawyer, and judge in the criminal, family law, and civil divisions of the Los Angeles County Superior Court â believes that there is so much wrong, and so much that could be right, in the way civil discovery is customarily performed. The problem, I think, is a failure to teach our children well. I hereby call upon every lawyer who aims or claims to be a mentor to pick up the torch and illuminate the path forward. Let us review the most basic lessons.
Lesson One: There is nothing wrong with the discovery statutes or rules of court as they pertain to civil discovery. No, "The fault, dear Brutus, is not in our stars/But in ourselves…." (Shakespeare, Julius Caesar, act I, scene 3, lines 140-141). Culture, even in litigation, is "the way we do things around here." Our civil discovery culture â the way we do things around here â is broken. We are sleepwalking our broken practices into the next generation. To the generation of lawyers in your early years of practice and seeking to master their professional skills, I say unto you: Do not model your discovery behavior on that of your elders. Indeed, throw out your discovery form files and your model "meet and confer" letters. Put your shopworn and dog-eared "general objections" in the dustbin of verbose uselessness. Let’s go to first principals.