The Hon. Paul W. Grimm recently wrote of the need for more education about discovery. Judge Grimm wrote that law schools share some of the blame for discovery abuses “for not spending sufficient time teaching students about discovery obligations in civil procedure classes.” P. Grimm, “Good Faith in Discovery,” 46 Litigation 23 (ABA 2020).
The article neatly defines the issue:
Why do lawyers and judges complain so much about discovery in civil cases? It takes too long and costs too much. There is too much contention and game playing and not enough cooperation. Judges don’t want to get involved in resolving discovery disputes and are ill-tempered when they have to. The laments go on and on. But a moment’s reflection suggests that the way in which discovery typically is conducted virtually guarantees there will be disputes.
Judge Grimm notes that much of the process goes on outside the view of the courts. Discovery requests and responses, for example, are not filed.
He then adds: “I am convinced that much of the unpleasantness that characterizes discovery can be avoided by following both the letter and spirit of a single rule of civil procedure–one that has been part of the rules since 1983, yet seems to have been forgotten or overlooked by lawyers and judges. That rule is Federal Rule of Civil Procedure 26(g)….”
Rule 26(g) is often called the “stop and think” rule. The 1983 Advisory Committee notes state that the Rule “obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection ….”
However: “It doesn’t help that this vital rule is buried in the bowels of Rule 26, likely the longest and most complex of the rules of civil procedure.” Thus, “(p)art of the problem undoubtedly lies with its location deep within Rule 26, obscuring its importance.” Nevertheless, it is designed to demand “good faith” in “all aspects of discovery practice….” Id.
Judge Grimm places the “blame” on courts, attorneys, clients, and law schools, and concludes:
If Rule 26(g) ever is to live up to its expectations, it must become internalized by all who participate in pretrial discovery. Regardless of its obscurity, at bottom it stands for a simple principle, one that anyone familiar with the dictates of Rule 11 already should well understand. In discovery, as in bringing and defending lawsuits, the parties and lawyers have an obligation to conduct themselves in good faith. And when judges take up their responsibility to be available to ensure that parties abide by the rule (and, when appropriate, sanction those who fail to do so), then those who are unfamiliar with it or who choose to disregard it will soon learn that they will not profit from their ignorance or noncompliance, and they will be deterred from future violations.
Id.; Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (Grimm, J.).