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In an earlier article, I talked about the importance of discovery and how the ultimate disposition of a case can certainly be affected—win or lose—by what happens.
As lawyers and many clients know, discovery can be very expensive and time-consuming. The default for most attorneys is to ask for everything to make sure they have “covered the waterfront”; after all, one does not want to miss an important document they may need for trial. In so doing, however, the cost can be astronomical and can far outweigh what is accomplished by actually securing voluminous documents or pieces of information.
Tightening the Discovery Reins
The Commercial Division of the New York State Supreme Court has enacted rules which, in many respects, simply codify prior practices by judges of the court to try and address discovery. Some of those rules include:
- Limiting the number of interrogatories at the outset of litigation, and their subject matter;
- Limiting the number of depositions to 10 per side and to 7 hours per deposition; and
- Requiring detailed objections to document demands.
Most importantly, the preamble to the Commercial Division Rules has been amended to provide, in substance, that the Commercial Division is “mindful of the need” to “encourage proportionality in discovery,” (Similarly, Federal Rules of Civil Procedure 26(b)(1) limits the scope of discovery in a federal lawsuit, to non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….(emphasis added)). What this means is that, although the types and amount of discovery permitted in the Civil Practice Laws and Rules (CPLR) may be unlimited so long as the demands and requests seek “matter material and necessary in the prosecution or defense of an action,” (CPLR 3101[a]), consideration also has to be given as to whether the amount of discovery demanded is proportional to what is at stake in the case.
Maintaining Proportionality
What is the case about? What is the amount of the dispute? Certainly a dispute over $10,000 can have the same fascinating legal and factual issues as a case worth $10 million, but no one would suggest that the discovery one might want to undertake in the $10 million case should be undertaken in the $10,000 case. Of course, most cases are far in excess of $10,000 and far less than $10 million, and therein lies the quandary: What is necessary? What is proportional? How can one limit one’s discovery requests by thinking carefully and critically about the case at the outset so that, while not “covering the waterfront,” you have framed the requests you do make to ensure the discovery of the important documents or information you need for trial?
Winning the Battle and Winning the War
Recently, at a New York State Bar Association program on the new Commercial Division rules, there was great emphasis by the New York County Commercial Division judges in attendance on putting their hands around discovery at the outset and working with attorneys to limit discovery demands to what is truly necessary in a given case. The goal, of course, is to avoid having clients win the battle and lose the war—to win the case, but to spend so much achieving their victory that, as a plaintiff, they receive very little from it, or, worse, spend more to prevail than they will receive, or, as a defendant, they spend more in defending the case than that which was demanded by the plaintiff. One thing to remember: except as may be limited by the rules or by court order, discovery is organic; if one learns, e.g., at deposition, or by reviewing the responses to their initial carefully drafted discovery requests, of the existence of other material and necessary information or documents that may not have been demanded in your first go round, you can follow-up with another request. However, it is certain that if the judges actively enforce the proportionality guidelines, many lawyers will have to adapt their practices in order to comply.
Contact me today with questions or comments.
