Litigation has an odd ebb and flow in that when one case is in discovery, they all are, and your days are spent battling discovery disputes. I am in that season.
This discovery dispute season has brought to my attention the need to discuss changing the Maryland discovery rules. I have talked about this with many colleagues, and everyone agrees discovery is an evil-though-necessary process and there should be better guidelines and rules governing the discovery process. It is hands-down the most inefficient and expensive part of the litigation process.
The Maryland Rule on Scope of Discovery is broad and creates a double-edged sword. You can use it to get the information you want but also then have to return the same to the opposing party. I have learned that whoever issues discovery responses first typically sets the tone for discovery disputes. If your responses are rampant with unreasonable objections, it is going to be a long road. If your objections are reasonable or standard but you actually respond, then there is usually a rational resolution to be reached. Then again, an overly aggressive lawyer can totally shift the balance.
I recently had a new objection offered by the opposing party. The party objected to a basic English word, saying the term was undefined and, therefore, the request was unclear. My flippant response, which did not get included in my discovery dispute letter, was “look at the dictionary.” They took the position the word had several meanings and its particular meaning in this case needed to be defined. It is not easy to define a basic English word beyond its dictionary definition.
Another issue with the discovery rules is the unlimited document requests. Is this necessary? Why not limit it to 30 requests, like interrogatories, and if you need more, you ask the court? Having to respond to 60-plus requests for production of documents in a $300,000 case is ludicrous. Drafting the responses costs more than the case is worth. (OK, I am exaggerating, but my point remains.)
The timing of discovery is outdated. In my time practicing I can probably count on one hand the number of times I have actually been able to respond to discovery requests in 30 days. (Particularly when you get unlimited document requests and 30 interrogatories at the same time and only 33 days to respond.) No matter how big or small your case is, it takes a lot of time to respond to discovery, even leaving out the detailed objections. Just collecting the information, organizing it, processing it takes more than 30 days; then you have to draft the formal responses.
The other issue on timing is how long the court gives for discovery in light of the DCM guidelines. The courts want to keep cases moving, which I completely agree with. Without deadlines, litigators will keep a case around forever. We need deadlines. This is how we prioritize and keep on track.
However, there needs to be realistic expectations on how much time is needed for discovery. After written requests, which have to be completed before an effective deposition can proceed, you then have to coordinate the calendars of at least four people – the deponent, the opposing lawyer, yourself and your client. Two lawyers can barely find an hour for a conference call, let alone a day-long deposition. It just takes time; there is no way around it.
Moreover, a short discovery period can be used as a tactic to not provide discoverable information to the other side. It should not operate as a litigation tactic to keep information from the other side. Which by the way is why discovery is so liberal and broad – so that both sides get the information they need to prosecute or defend the case.
Finally, there is the good faith certificate requirement. This rule has very little guidance on what is required to meet the good faith attempt to resolve a discovery dispute. Judges all apply the rule differently. Some say a letter is not enough, some are fine with just one letter. The application is all over the place.
My point is, that the bar and the rules committee need to open discussions on reasonably amending the discovery rules to fit the modern issues we all face in the discovery process. I, as I am sure many Maryland lawyers do, have many thoughts on how to make this process more efficient and work for all parties involved.
What changes would you make to the state’s discovery rules?