STANDARDIZING DISCOVERY
by Walt Auvil

In an ongoing effort to "standardize" civil litigation practice, the American Bar Association Section of Litigation promulgated Civil Discovery Standards. The Section's fourth draft of the Standards was released in May of 1999, and approved by the ABA at its annual meeting in August, 1999. The Standards were approved and adopted by the House of Delegates of the ABA. They may be downloaded at www.abanet.org.
What are these new Standards and do they make helpful suggestion for discovery practice? According to the Standards themselves their purpose is three fold:
"(i) to eliminate unnecessary efforts and expense, (ii) to restrict the opportunities for misusing the discovery process, both offensively and defensively, and (iii) where possible, to encourage a cooperative rather than adversarial approach to discover." S. preface.

An overarching premise of the Standards is that "the court take an active, early role in addressing discovery matters. S.1., comment. Using discovery commissioners, magistrate judges, or someone else other than the trial judge may be appropriate, according to the Standards, where the case "is large or complex" or, for some other reason the trial court is unable to devote its time to discovery disputes in a timely manner. The economic resources of the parties is a significant consideration in considering whether to adopt a discovery commissioner or the like. S.4.
In general, parties have a duty to "provide requested information in a way that minimizes time and expense for everyone concerned, including the court." Id. p.18. Producing on paper a large volume of documents which were on computer in digital form, without informing opposing counsel of the option to have the documents produced digitally is an example of violation of this principal.
Consulting Counsel and the Court
The extent of a party's duty to consult with opposing counsel before bringing a discovery dispute to the Court is a constant subject of debate. The Standards provide that "[b]efore any informal contact with the Court, the parties should confer in good faith, either in person or by telephone, to try and resolve the dispute." S.2.a.iii. The parties are urged to try narrow areas of dispute, even if the entire dispute cannot be resolved. S.2.b.i.
Informal contact with the Court, by telephone and letter, is encouraged by the Standards. Courts are encouraged to "consider ways to resolve [discovery] disputes that do not require a formal written motion or in-person hearing." S.2.a. Telephone calls or short letters "outlining the nature of the dispute and attaching any pertinent materials" are suggested. Courts are urged to rule "either by a telephone call, a letter-ruling, an order or by calling an informal discovery conference to hear the parties further." S.2.a.ii.
Comments by the drafters noted that "[a]lthough these Standards favor informal resolution of discovery disputes, they do not contemplate or permit ex parte communications with the Court." S.2., comment. Telephone calls are to be conferenced with opposing counsel and correspondence to the Court copied to opposing counsel. S.2.a.ii.
Reluctance by courts to impose sanctions for failure to comply with discovery obligations is perceived by counsel as "a major problem". S.3., comment. In order to attempt to address this judicial reluctance, the Standards create "a presumption that sanctions will be imposed for discovery violations, with the burden shifting to the noncomplying party to demonstrate why they are not warranted" Id.
Interrogatories
Pattern or form interrogatories, often developed by the courts in conjunction with bar organizations are encouraged. S.6.c. These are presumptively correctly worded to obtain discoverable information. Strained interpretations of discovery requests designed to "thwart the legitimate inquiries of the opposing party", and "[f]orced interpretations and evasive answers" are condemned. S.7., comment.
"[B]oilerplate objections" set forth at the outset of interrogatories and incorporated by reference thereafter, are "not acceptable". Id. "‘[P]at, generic, non-specific objections, intoning the same boilerplate language " are violations of the party's discovery obligations. Id., quoting Obiajulu v. City of Rochester, Dep't of Law, 165 F.R.D. 293, 295 (W.D.N.Y. 1996). Also condemned is the practice of answering interrogatories "subject to these objections" or with the preface, "without waiving these objections." Id. As the Standards point out, this practice leaves the opponent uncertain as to whether a full response has been provided. A specific statement as to whether the answer is or is not complete, and if not, why not is required. Id.
Contention interrogatories requiring a responding party to state the basis of a particular claim or defense should "be used sparingly" and directed to "target claims, defenses or contentions that the propounding attorney reasonably suspects may be the proper subjects of early dismissal or resolution, or, alternatively, to identify and to narrow the scope of claims, defenses and contentions where the scope is unclear." S.8.
Preservation of Evidence
Preservation of potentially relevant documents is a duty which a party has as soon as the party learns that litigation is probable or has commenced. The lawyer for the party must both tell the party of the duty and of the possible consequences of failing to preserve the potentially relevant documents. S.10. The Standards specifically provide that "corporate officers and corporate counsel who have notice of discovery obligations should communicate these to relevant employees. If the documents are destroyed, it is no defense that the employee responsible did not know of the duty to preserve them, so long as the company itself had notice." S.10, comment. A preexisting document retention and disposal policy does not excuse destruction of potentially relevant documents. Id.
The duty to preserve documents extends to information stored in an electronic medium, including e-mail. Requests may specify the manner of production - electronic, hard copy, or both. S.29. Requests for electronic information relevant to electronic documents, such as information showing whether and when e-mail was sent or opened and when it was created and/or edited are proper. S.29.b.i.
Active involvement of counsel in responding to document production requests is important. Counsel "should take whatever follow-up steps are necessary to ensure that the [discovery] plan is effectively carried out", including being alert to areas signaling a breakdown in responses - for instance failure to get a response from an employee who counsel believes is likely to have discoverable material. Also, technically accurate but misleading responses are improper. S.11, comment.
Depositions
Deposition discovery disputes are discussed in some detail in the Standards, with some unusual and interesting approaches suggested. For instance, objections, "to the date or place of a deposition should be made promptly after a notice of deposition is received." Upon prompt objection (within three days of receipt) "the deposition should be stayed until the parties agree on or the court sets a date or place for it." S.16. Objections to depositions act as a stay "to give the parties time to agree or obtain a court ruling on the issues," although the Standards note that some courts have held that an "objecting party must actually obtain a protective order to be excused from attending a deposition." S.16, comment.
Depositions of Plaintiffs are where the case was filed. S.16.f. Corporate Defendants may be deposed "where it has its principal place of business". Id. Individual Defendants may be deposed where they reside. Non-party depositions may be taken where the witness lives or works. Id. Depositions are not "public" proceedings, unlike trials. S.16, comment. However, the Standards suggest that "a deponent's spouse or one other member of the deponent's immediate family" together with the parties, counsel and expert witnesses should be permitted to attend depositions. Id.
During a deposition, counsel's objection to questioning should be non-argumentative and non-suggestive. Phrasing such as "leading", "argumentative", "form", "asked and answered "and "non-responsive" should be used. S.17. The Standards suggest that "[t]o give added teeth to those commands, where counsel and/or the witnesses violates them, the jury should be permitted to have this evidence before it." Offensive conduct by the examining attorney should be presented to the jury as well. S.17.b. and comment.
Discussion of the subject matter of a counsels' examination of a witness should be done only after the deponent is excused from the deposition room. S.18.a.iv. When objections go beyond brief non-argumentative and non-suggestive objections the witness should be excused. Id.
30(b)(6) Duties
The duties of a corporation responding to a notice of 30(b)(6) deposition are discussed in detail. S.19. The corporation is required to "make a diligent inquiry to determine what individual(s) is (are) best suited to testify." S.19.b. Critically, the Standards impose a duty upon the corporation or other responding party to communicate with the inquiring party regarding any uncertainty about the scope or meaning of designations "in a timely manner . . . so that depositions may go forward as scheduled." S.19.e. Counsel has an obligation to "prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry." S.19.f.
In an innovative approach, the Standards suggest that an officer or manager of a corporation who is served with a deposition notice may respond with an affidavit stating that "he or she has no knowledge or information" on the subject of the notice and identifying the person or entity within the corporation with the knowledge. The noticing party may then elect to proceed (or not) with the deposition as noticed. S.19.g.
Expert Witness Discovery
The scope of discoverability of communications between counsel and expert witnesses is subject to considerable dispute and conflicting rulings. Id., p. 61-62. The Standards suggest that "[u]ntil there is a clear legal rule, the best way to deal with the issue is to try to obtain an agreement from all the parties to the case on how they will treat the issue or seek a ruling from the court on it." S.21., comment.
Deposition time for an expert is ordinarily paid by the party taking the deposition, but travel time to and from the deposition is the responsibility of the party presenting the witness. S.22., comment.
Asserting Privileges
Claims of privilege should be documented in detail in a privilege log. For documents, the log must include:
1) The type of document; 2) its length; 3) enclosures or attachments should be described; 4) its "general subject matter"; 5) date of creation; 6) author(s) and address; 7) recipients and their addresses; and 8) the type of privilege claimed.

For oral communications:
1) the name and address of speakers; 2) persons present; 3) date and place of communications; 4) general subject matter of communications. S.26.

An agreement among the parties that production of documents "en masse" will not waive a claim of privilege will be enforced. Such an agreement would allow the privilege issue to be reserved and addressed when and if the documents are used. S.27, comment. Similarly, a stipulation that inadvertent disclosure of privileged information would not constitute a waiver of the privilege would be advisable. S.28.
Plaudits, Pans & Ponderings
Three suggestions from the Standards stand out as good moves to speed and simplify the discovery process: First, the strong provisions on the duty to preserve evidence; Second, allowing jurors to hear evidence of deposition misconduct; Finally, the explicit affirmation of a corporate duty to respond fully to designations in a 30(b)(6) notice.
Preservation of evidence is a thornier problem than ever given the digital format of much relevant data. It is critical to the fact-finding process that such data be preserved. The Standards emphasize the duty of the corporation to preserve the potentially relevant evidence and to communicate that duty to the persons within the organization actually charged with maintaining the data. Also, a records retention policy is no defense to destruction of potential evidence. These provisions give a strong boost to significant sanctions for destruction of potentially relevant evidence.
Second, allowing jurors to hear evidence of deposition misconduct is often the most effective and appropriate "sanction" for such misbehavior. Certainly not every tussle or objection between the parties and counsel would properly be aired before a fact-finder. Minor disputes which counsel cannot resolve should be brought to the Court for resolution pre-trial.
However, there is an equity which favors presenting the true picture of a party's behavior and that of counsel outside the presence of the jury. If the party or counsel has comported himself or herself properly then no prejudice would result. If, however, a radically different picture was presented at deposition than that which counsel wished to show at trial, then the jury should see the contrast between depo "Rambo" and trial "Bo Peep".
Finally, the Standards strongly reaffirm the expansive duty imposed by Rule 30(b)(6). At the core of 30(b)(6) is counsel's obligation to thoroughly "prepare the designated witness to provide meaningful information about any designated area(s) of inquiry." Failure to do so should result in sanctions, and, as with deposition misconduct, should be presented to the jury in appropriate case. Additionally, if the corporation claims uncertainty about the designations, it has the obligation to identify these and attempt to work these out before the deposition.
Three potential problems are created by the Standards: First, encouraging informal contact with the court; Second, restriction of contention interrogatories; and, finally, philosophically encouraging courts to take an active early role in discovery.
Informal contact with the court to resolve discovery disputes, by telephone or letter, has some obvious advantages over formal motion practice: It is quicker and less cumbersome for counsel. However, informal telephone conferences can present an issue without providing notice to the parties or the court in advance. Not having the matter on a busy court's docket can result in hurried consideration "on the fly", perhaps without provision for a court reporter to make a record. Further, the parties don't have an opportunity to research legal authority which might be important to the discovery issue.
Second, the suggestion that contention interrogatories be "used sparingly", although general, seems unfounded. The parties should know the factual basis for contentions in their pleadings. Of course, the discovery process may reveal additional fact supporting claims or defenses. That is why the rules provide for supplementing responses. It is often relevant when a party knew something supporting their claim or defense. Early use of contention interrogatories help fix the time of a party's knowledge of relevant evidence.
Finally, the philosophy of "active, early" involvement of the court in discovery may be a solution in search of a problem. In many West Virginia jurisdictions discovery functions well without structured, regular judicial involvement. Certainly the court should not shy away from discovery disputes, but, conversely, it should not impose numerous deadlines and reporting requirements which micro-manage counsel and the parties.