Games lawyers play: Legal Discovery and Social Epistemology

Legal Theory

Volumn 4, Issue 2, 1998, Pages 93-163

  Talbott, William J ^a   Goldman, Alvin I ^b  

^a UNIVERSITY OF WASHINGTON   (United States)

^b UNIVERSITY OF ARIZONA   (United States)

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EID: 84929738312     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000951     Document Type: Article

References (109)

1. Paramount Pictures (1991).
2. In fiction, John Grisham is noteworthy for his attempts to give readers an insight into some of the techniques and stratagems of litigation, including discovery. See especially John Grisham, THE RAINMAKER (1995). Not even Grisham has attempted to portray the process of drafting individual interrogatories and requests for production in order to maximize the chances of uncovering important evidence or the process of drafting creative and disingenuous responses to them to avoid divulging damaging information.
3. FED. R. Civ. P. 26-37.
4. Jack H. Friedenthal et al., CIVIL PROCEDURE (2nd ed.) 379 (1993).
5. Charles Alan Wright, THE LAW OF FEDERAL COURTS (4th ed.) 540 (1983).
6. F.R.D. 402 (1993).
7. Perhaps the most disturbing example of the nondisclosure of relevant evidence has been the carefully orchestrated strategy of the tobacco industry to use attorney-client privilege as a dodge to prevent production of hundreds of thousands of documents over four decades. After reviewing more than 800 of these documents, Minnesota Judge Kenneth J. Fitzpatrick said they showed a “conspiracy of silence and suppression of scientific research” (Tobacco Documents Show ‘Conspiracy of Silence and Suppression, Judge Says, WASH. POST, Dec. 18, 1997, at A14). For examples from the asbestos industry, see Paul Brodeur, OUTRAGEOUS MISCONDUCT (1985). For examples from the auto industry, see Rogelio A. Lasso, Gladiators Be Gone: The New Disclosure Rules Compel a Reexamination of the Adversary Process, 36 B. C. L. REV. 479-526 (1995). Lasso includes a partial list of cases in which automobile manufacturers and their attorneys “have been found to conceal relevant information despite specific discovery requests and court orders” (n. 96 at 500), of which the most well-known is General Motors’ withholding of crashtest results on its fuel tanks from more than 100 different plaintiffs who had sued G M concerning truck fires. These reports were not disclosed by G.M. or its attorneys until they were uncovered independently by plaintiffs attorneys in Mosely v. General Motors Com No CA-90V6276 (Ga. State CL, Fulton County; Feb. 26,1993). H”
8. FED. R. CIV. P. 26. The “mandatory disclosure” provisions of the 1993 amendments are discussed in Section IV, infra.
9. Douglas B. Baird et al., GAME THEORY AND THE LAW (1994).
10. Rene Descartes, MEDITATIONS (1641).
11. This historical segment follows closely the account of John Langbein, Torture and Plea Bargaining, 58 PUB. INTEREST 43-61 (1980).
12. Tehan v. Shott, 382 U.S. 406, 416 (1966).
13. FED. R. EVID. 102 (emphasis added).
14. Id. at 401.
15. Id. at 402.
16. E. Cleary, ed., MCCORMICK ON EVIDENCE 23 (3d ed. 1984).
17. FED. R. EVTO. 804.
18. Id. at 804 (b) (3).
19. Id. at 804 (b) (5).
20. Id. at 603.
21. Id. at 403.
22. Id. at 701, Advisory Committee Notes.
23. E. Sward ’ Values, Idelogy, and the Evolution of the Adversary System, 64 IND. L. J. 326, 329 (1989).
24. Hickman v. Taylor, 329 U.S. 495 at 500 (1947).
25. FED. R. CIV. P. 26(b)(l).
26. For criticisms of the adversary system from this vantage point, see D. Luban, LAWYERS AND JUSTICE 68-74 (1988); W.H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. R. 29-144 (1978); M.P. Golding, On the Adversary System and Justice, in R. Bronaugh, ed., PHILOSOPHICAL LAW 106-12 (1978); and A.H. Goldman, THE MORAL FOUNDATIONS OF PROFESSIONAL ETHICS 112-16 (1980).
27. See].U. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823 (1985).
28. W. W. Schwarzer, The Federal Rules, the Adversary Process, and Disccrvery Reform 50 U PlTT L. REV. 703, 712 (1989).
29. This is not quite true. Even in a single agent the evidence may be distributed in different parts of memory, which creates a problem of access that is somewhat analogous to the access problem for organizations. See C. Cherniak, MINIMAL RATIONALITY 49-71 (1986) and A I Goldman, PHILOSOPHICAL APPLICATIONS OF COGNITIVE SCIENCE 9-13 (1993).
30. Thus, the U.S. Supreme Court has stated that the purpose of discovery rules is “for the parties to obtain the fullest possible knowledge of the issues and facts before trial” (Hickman v. Taylor, This is not quite true. note 31, at 500) and to “make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent” (U.S. v. Procter & Gamble Co., 356 U.S. 677 at 683 (1958)).
31. See FED. R. CIV. P. 37 (b) (2) for the variety of sanctions that may be imposed, of which refusing to admit the material into evidence is only one alternative, and not the harshest
32. FED. R. CIV. P. 26(b)(l). Prior to the 1993 amendments to the federal discovery rules, the tools for discovery included written interrogatories (questions) directed to a party for written replies (FED. R. CIV. P. 33); written requests for production of documents and other things (FED. R. CIV. P. 34); written requests for entry upon land for inspection and other purposes (FED. R. CIV. P. 34); written requests for physical and mental examinations of persons (FED. R. CIV. P. 35); written requests to a party to make admissions of fact (FED. R. CIV. P. 36); and the taking of testimony under oath from potential witnesses and others with relevant information (FED. R. CIV. P. 30,31). The 1993 amendments did not eliminate any of these tools, but added some “mandatory disclosure” requirements and set limits on the use of the pre-1993 tools (FED. R. CIV. P. 26 (a) (b)).
33. Prior to the 1993 amendments to the federal discovery rules, the tools for discovery included written interrogatories (questions) directed to a party for written replies note 8. Our summary of the case is based on the Washington State Supreme Court's summary at 306-10, and on reports in the press.
34. The trial court reduced the award for loss of professional consultations from $150,000 to $2,250, but left standing an award of $1,085,000 for injury to professional reputation and an award of $2,137,500 for physical and mental pain and suffering. The State Supreme Court disallowed the awards for loss of professional consultations (WSPIEA v. Fisons, Prior to the 1993 amendments to the federal discovery rules, the tools for discovery included written interrogatories (questions) directed to a party for written replies note 8. note 8, at 332) and the award for physical and mental pain and suffering (WSPIEA v. Fisons, Prior to the 1993 amendments to the federal discovery rules, the tools for discovery included written interrogatories (questions) directed to a party for written replies note 8. note 8, at 318-23), but left standing the $1,085,000 award for injury to professional'reputation (WSPIEA v. Fisons, Prior to the 1993 amendments to the federal discovery rules, the tools for discovery included written interrogatories (questions) directed to a party for written replies note 8. note 8, at 332).
35. In WSPIEA v. Fisons, the proceedings were governed by the Washington State Superior Court Civil Rules. Though the Washington rules were not identical to the pre-1993 federal discovery rules, they were modeled on the federal rules, and the relevant provisions, including rule and section numbering, are practically equivalent for our purposes. The pre-1993 federal discovery rules are still the basis for the discovery rules in almost all of the states, and in the nearly one-third of federal district courts that have “opted out” of the “mandatory disclosure” provisions of the 1993 amendments.
36. The classic work on the theory of two-person, zero-sum games is John Von Neumann & Oskar Morgenstern, THEORY OF GAMES AND ECONOMIC BEHAVIOR (1944). Following the usage of von Neumann and Morgenstern, we use the term “game” very generally to refer to any strategic interaction.
37. In the U.S. legal system, as in the medical system, the predominant model is payment for services rendered, and thus one of the major monetary motivations for attorneys is to maximize the number of services rendered. It is easy to see how this fact can give attorneys on opposite sides of a lawsuit a common interest (in multiplying legal services and thus their legal fees), which potentially conflicts with the interests of their clients. This is one of many ways in which part of the interaction between the attorneys better fits the model of what Axelrod calls an “iterated Prisoner's Dilemma” (Robert Axelrod, THE EVOLUTION OF COOPERATION (1984)) and what Taylor calls a “Prisoner's Dilemma Supergame” (Michael Taylor, THE POSSIBILITY OF COOPERATION (1986)).
38. Baird et al., the U.S. legal system, as in the medical system, the predominant model is payment for services rendered, and thus one of the major monetary motivations for attorneys is to maximize the number of services rendered. note 14, at 89-90. A striking example of the unraveling principle at work comes from biology. Because the deepness of a toad's croak is positively correlated with its size, and because size is an important variable in determining evolutionary fitness, it might be thought that when a female announces her interest in mating, only the largest toads (with the deepest voices) would croak in reply. But all toads will croak, because they all gain an advantage over toads smaller than they are by croaking, and no advantage over toads bigger than they are by not croaking. So the result is that, if a female announces her availability, all the toads croak in response, thus making it easy for her to determine which is the largest. See Robert Frank, PASSIONS WITHIN REASON 105 (1988). The classic statement of the unraveling result is George Akerlof, The Market for’ Lemons’, 84 Q. J. ECON. 488-500 (1970). It should also be noted that here, and throughout, we limit our discussion to information that is verifiable in the sense in which used by Baird, et al., the U.S. legal system, as in the medical system, the predominant model is payment for services rendered, and thus one of the major monetary motivations for attorneys is to maximize the number of services rendered. note 14, at 89-that is, that it can be readily checked once it is revealed.
39. Id. at 90-95.
40. Id at95.
41. Id. at 262-66.
42. In a typical case, there would probably be more than one “threatening” request for production. For example, in WSPIEA v. Fisons, there were requests for production from both the child's attorney and the attorney for the child's doctor that would have required disclosure of the “smoking gun” documents had not the defendant's attorneys objected to them (Id at95 note 8, at 348-50). It simplifies the discussion of our hypothetical case to assume a single “threatening” request for production.
43. Cf. WSPIEA v. Fisons, a typical case, there would probably be more than one “threatening” request for production. note 8, at 307-308.
44. Here we follow very closely the facts of the Fisons case. See WSPIEA v. Fisons Cf. WSPIEA v. Fisons note 8, at 346-54.
45. Objections of each of these four types, and many other types besides, were raised by the attorneys for defendant Fisons in WSPIEA v. Fisons. See infra notes 66, 67, and 70.
46. Thus, the solution to the Discovery Game is formally analogous to the solution to the Shell Game-defendant's attorney tries to give the plaintiffs attorney no clue as to which “shell” might have a “pea” under it, so diat from the point of view of plaintiffs attorney, each “shell” is equally probable.
47. For example, in WSPIEA v. Fisons, in response to particular requests for production from the attorneys for the child's doctor, the defendant's attorneys incorporated into their responses two pages of general objections, attached as Exhibit A (Thus, the solution to the Discovery Game is formally analogous to the solution to the Shell Game-defendant's attorney tries to give the plaintiffs attorney no clue as to which “shell” might have a “pea” under it, so diat from the point of view of plaintiffs attorney, each “shell” is equally probable. note 8, at 346, n. 86).
48. WSPIEA v. Fisons, For example note 8, at 307.
49. In our experience, when attorneys claim that documents of this kind are “not relevant” they are often actually making an even more controversial determination-for example, that what is obviously “relevant evidence” in the technical sense (FED. R. EVID. 401) should be excluded because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury” (FED. R. EVID. 402). Clearly, these determinaaons should never be made unilaterally by a party's attorney. They should always be made by a judge or special master.
50. FED. R. EVID. 401.
51. Taylor, FED. R. EVID. note 56, at 78.
52. Charles W. Sorenson, Jr., Disclosure Under Federal Rules of Civil Procedure 26(a)-'Much Ado About Nothing?’, 46 HASTINGS L.J. 679, 784 (March 1995).
53. Taylor, Disclosure Under Federal Rules of Civil Procedure 26(a)-'Much Ado About Nothing?’ note 56, at 77.
54. See, e.g., Sorenson, Disclosure Under Federal Rules of Civil Procedure 26(a)-'Much Ado About Nothing?’ note 56 note 80.
55. As defined in Disclosure Under Federal Rules of Civil Procedure 26(a)-'Much Ado About Nothing?’ note 56 note note 77, a TR/FFR attorney would behave as an FFR attorney and not comply, but, unlike an FFR attorney, would also feel guilty for not complying with them.
56. WSPIEA v. Fisons, As defined in Disclosure Under Federal Rules of Civil Procedure 26(a)-'Much Ado About Nothing?’ note 56 note note 77, a TR/FFR attorney would behave as an FFR attorney and not comply, but, unlike an FFR attorney, would also feel guilty for not complying with them. note 8, at 344.
57. Id. at 5, 76-78.
58. Id. at 353.
59. Id. at 343.
60. Id. at 343.
61. Id. at 345.
62. WSPIEA v. Fisons, WSPIEA v. Fisons note 8, at 308.
63. If our three proposals were adopted in some form, we would expect that they would be augmented by a strong duty to supplement one's responses, so that a party and its attorney would not be rewarded for waiting to investigate the case until after they had responded to the other party's discovery requests. In the text, we do not take up the issue of the duty to supplement because we feel that it has been well-addressed by the 1993 amendments to the federal discovery rules. See FED. R. CIV. P. 26(e).
64. Amendments to the Federal Rules of Civil Procedure, 146 F.R.D. 501, 510 (1993)
65. Lasso, Gladiators Be Gone, Amendments to the Federal Rules of Civil Procedure note 11, at 481-82.
66. FED. R. Qv. P. 26(a)(l)(B).
67. FED. R. CIV. P. 26(a)(1)(B), Advisory Committee Note.
68. FED. R. CIV. P. 26(b) (5).
69. R. Bruce Beckner, Advance Sheet: Cooking up Document Production-or How Not to Get Burned by Smoking Guns, 20 LITIGATION 49-51 (Spring 1994). This journal is published by the Litigation Section of the American Bar Association.
70. Id.at51.
71. The 1992 Arizona rules require automatic production without the need for a written request (within a specified time period) of all documents “which the party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence” (ARIZ. R. CIV. P. 26.1).
72. William T. Birmingham & Charles D. Onofry, Mandatory Disclosure of Information: One State's Experience, 36 FOR THE DEF. 7,9 (July 1994) (emphasis added).
73. Id at l0.
74. Id at 11.
75. Jill Schachner Chanen, States Considering Discovery Reform, 81 A.BA. J. 20 (April 1995).
76. FED. R. CIV. P. 26(a)(l)(B).
77. FED. R. CIV. P. 26(a)(l)(B), Advisory Committee Note.
78. Id.
79. FED. R. Civ. P. 37(b) (2) (E).
80. Lawyers Face Fines in Medical Case, SEATTLE TIMES, Sept 21,1993, at Bl.
81. WSPIEA v. Fisons, Lawyers Face Fines in Medical Case note 8, at 356 (footnotes omitted).
82. Id. at 356.
83. Id.
84. Bogle 6 Gates Agrees to Pay Sanction for Misconduct in Suit, SEATTLE POST-INTELLIGENCER, Jan. 29, 1994, Al, A6. Apparently the $325,000 was paid to reimburse the Washington State Physicians Insurance Exchange & Association for its attorneys’ fees on the case. According to newspaper reports, the defendant and its attorneys did not disclose how much of the fine would be paid by each (Fines Say It's Not OK to Withhold Evidence, SEATTLE TIMES, Jan. 30,1994, at B2. Thus, it is impossible to determine how much, if any, of the fine was paid by the defendant's attorneys.
85. Bogle & Gates Agrees to Pay Sanction for Misconduct in Suit, Bogle 6 Gates Agrees to Pay Sanction for Misconduct in Suit note 123, at A6.
86. The proposal in the text applies to attorneys who bill on an hourly basis. If the attorney's fee is a contingent one, then the sanctions cannot be based on the attorney's actual fee for the case, because that fee may be quite low, as a result of the other side's finding out about the nonproduced documents. In such cases, we believe that the sanctions should be based on what the attorney s fee would have been had her client been successful in the case. Where sanctions are awarded, we agree with the approach of the Fisons court that the party making the discovery motion should be reimbursed for reasonable expenses due to the nondisclosure, including reasonable attorneys fees in bringing the motion; and the remaining funds should be deposited in a court-approved fund for charity (WSPIEA v. Fisons, Bogle & Gates Agrees to Pay Sanction for Misconduct in Suit note 8, at 356).
87. Again, our upper limit is a conservative one. It is estimated that Fisons’ fees to its attorneys in WSPIEA v. Fisons exceeded $2 million (Taylor, The proposal in the text applies to attorneys who bill on an hourly basis. note 56).
88. Bogle & Gates Agrees to Pay Sanction for Misconduct in Suit, Again, our upper limit is a conservative one. note 123, at A6.
89. Taylor, Bogle & Gates Agrees to Pay Sanction for Misconduct in Suit note 56, at 77.
90. Id at77.
91. FED. R. CIV. P. 37(c) (1).
92. FED. R. CIV. P. Rule 26 (b) (3).
93. In our brief exposition of the work product doctrine, we follow James Holmes, The Disruption of Mandatory Disclosure with the Work Product Doctrine, 73 TEX. L. REV. 177-207 (1994). See his article for a more thorough explanation of the doctrine, with citations.
94. See id. for a more general argument that the protection of intangible opinion work product conflicts with the goals of discovery itself and should not be permitted to frustrate those goals. Holmes's argument concerns the mandatory disclosure provisions of the 1993 amendments to the federal discovery rules, but his discussion equally applies to our proposal. He concludes: “Intangible opinion work product protection does not further the purposes of the adversary system; it merely disrupts the efficient information exchanges of mandatory disclosure (id. at 207).
95. See, e.g., Lasso, See id. for a more general argument that the protection of intangible opinion work product conflicts with the goals of discovery itself and should not be permitted to frustrate those goals. note 11, at 511-13.
96. Sorenson, See id. for a more general argument that the protection of intangible opinion work product conflicts with the goals of discovery itself and should not be permitted to frustrate those goals. note 11 note 80, at 783.
97. A mendments to the Federal Rules of Civil Procedure, See id. for a more general argument that the protection of intangible opinion work product conflicts with the goals of discovery itself and should not be permitted to frustrate those goals. note 11 note 80 note 100.
98. A.BA., MODEL RULES OF PROFESSIONAL CONDUCT (1995).
99. Id at5.
100. Id at 5.
101. Id. at 6 (emphasis added).
102. Id. at 66.
103. See Monroe Freedman, LAWYERS’ ETHICS IN AN ADVERSARY SYSTEM 3-8 (1975).
104. Luban, LAWYERS’ ETHICS IN AN ADVERSARY SYSTEM note 35, at 75.
105. See MODEL RULES OF PROFESSIONAL CONDUCT, LAWYERS’ ETHICS IN AN ADVERSARY SYSTEM note 35 note 146, at 6.
106. A similar point is made by Sorenson concerning FED. R. CIV. P. 26(a): “Rule 26(a)
107. clearly signals the reversal of two of the central systematic tenets of traditional zealous advocacy lnthe context of discovery. When potential conflicts arise between a lawyer's ethical duty as an otticer of the court to disclose facts and a lawyer's ethical duty to represent the client's interest, tne duty to the court and the administration of justice rather than client's interest take primacy (Sorenson, A similar point is made by Sorenson concerning FED. R. CIV. P. 26(a): “Rule 26(a) note 80, at 789-90)
108. Amendments to the Federal Rules of Civil Procedure, supranole 100, at 511.
109. Lasso, Amendments to the Federal Rules of Civil Procedure note 11, at 481.