CT Blue

I rarely pay attention to the emails I receive at work from organizations like the ABA and the National Law Journal, but this one caught my eye.

For anyone not somewhat experienced in litigation this issue might seem esoteric, but for me this attempt to game the rules of discovery is emblematic of the ongoing process in which the rich in this country are progressively stripping the rest of us of our money, our rights, and our dignity.

Much to the disappointment of the corporate titans, not every legal claim in our legal system must be heard in corporate kangaroo courts (otherwise known as mandatory arbitration, see here for a great example). What's a corporation to do? How can one insure that the little guy can never win? Sometimes owning the whole House and Senate, and influencing the judiciary in many and sundry ways (when you're not outright buying judges, just isn't enough.

Well, one way is to game the rules, and that's what the article is about. Big business suggests that the “requester” should pay the costs incurred by the opponent in responding to discovery requests. If, for instance, I sue a drug company for hiding the fact that it knew one of its drugs would kill me, I must pay them to seek out the emails and other information that prove my case. The object is to drive up the cost of litigation even more. As the article notes, the typical corporate defense to any lawsuit is to drive up the costs of litigation to discourage not only the actual plaintiff, but plaintiffs yet to come. This rule change would enable them to stonewall on discovery and then charge the opposition for doing so. Not only that, but it gives them endless opportunities to fight about what should be a side issue: the proper amount that the “requester” should pay. Given the steep hourly rates that the defense firms for major corporations charge, the cost of even a modest discovery request is likely to be exorbitant, but as the article points out, there are other ways to drive up costs, such as over-responding: providing needles of relevant information in a haystack of a response.

I don't know all the details of this, and my hope is that it won't pass, at least not right away. But, these people never give up. They have money and influence and they simply keep demanding. Just another brick in the wall.