Cut Annoying Discovery Letters Some Slack
“Annoying discovery letters” is redundant. All discovery letters are annoying. But, the truth is that they are also necessary.
By discovery letter, I mean those letters that are sent back and forth between parties in civil litigation that try to clarify what discovery requests are and are not in dispute. They are often sent after a lengthy meet and confer session.
Why are they annoying?
They are annoying because for in-house counsel they are time consuming and expensive to draft and tedious to review.
The format is fairly standard.
First, summarize the request. (“Interrogatory No. 1 asks for a summary of all conversations between Taylor Swift and Katy Perry.”).
Then describe the other party’s view of it (“Swift objects to this request because it is burdensome to describe every conversation.”)
Finally, describe how the parties had resolved the dispute during the meet and confer (“The parties agreed that Swift need only describe conversations between January 1, 2014, and May 31, 2014, and that Swift need only describe conversations referenced in the song ‘Bad Blood.’”).
That’s bad enough. But the other party will write a letter back and if everyone doesn’t agree on the resolution in their respective letters, another meet and confer is necessary. Rinse and repeat.
You may resent having to pay your outside counsel to write these letters because you see the hours spent on them. Plus, you have to review the letters carefully every time to make sure your lawyer hasn’t accidentally given up the farm on a key discovery issue. The other party will write a discovery letter too
Why are they necessary?
Courts make you do it. Every jurisdiction is a little different in practice, but civil procedure rules uniformly require the parties to confer before filing a discovery motion to resolve a dispute.
Take Federal Rule of Civil Procedure 37:
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
In federal court, a statement in the brief saying that the parties met and conferred and were unable to reach an agreement is enough. Some jurisdictions, like the District of Columbia, require a separately titled section with its own signature certifying that the requirement has been met. And if you don’t include it, the clerk takes that special kind of sick pleasure in rejecting the filing altogether.
There’s another reason too. The classic CYA one. In a heated discovery battle, a meet and confer session is filled with lots of offers and promises of what will be done and plenty of feints and tricks of what will not be done.
Maybe your outside counsel heard, “we will start a rolling production of documents in two weeks.” But the other side meant “we will start reviewing all the e-discovery in two weeks.”
Discovery letters are the only way to protect your company from the other side running roughshod over your outside counsel. They document the meet and confer with a sneaky opposing party who is not acting in good faith. A clear discovery letter forces the other side to follow through on its promises and leaves it no room to wiggle free and avoid discovery obligations.
Writing a clear discovery letter takes some time, but it saves time down the road. Parties who trade discovery letters that document the meet and confer will reach agreement on discovery disputes. That avoids expensive motions practice.
The cost of writing a letter or two pales in comparison to responding to a motion to compel and then preparing for argument in front of the judge.
Try to cut discovery letters (and your outside counsel spending time on them) some slack. They are only trying to do their job—saving you money.