By now, if you are an attorney, you may have read about the “kindergarten order” issued by U.S.D.C. Judge Sam Sparks which “invited” two attorneys who had been at odds over alleged overly broad and burdensome discovery issues to a “kindergarten party” in his court. The Order issued by the clearly exasperated Judge told the attorneys to make sure to bring a “sack lunch” and a “toothbrush” to his court in case the party runs late.
When the Order first came out, I got copies from attorney friends in Texas, California, and Ohio. The Order also made the national legal journals and now all lawyers know. I would presume the lawyers involved have gotten some good natured ribbing from colleagues who all got a big laugh over this. I would presume, however, that their clients are not laughing as they are the ones who have to pay for this “party.”
While the issue of “overly broad and burdensome discovery” is usually an issue in cases where plaintiffs sue deep pocketed corporations, I have found that this is also an issue in many insurance defense cases although many insurers are oblivious to the issue. That is, discovery served on a plaintiff by defense counsel in typical insurance cases is most often form discovery that is designed by its very nature to be overly broad and burdensome.
While many insurers do rightly limit a defense attorney’s fee for such “form” work, I believe that by looking only at the upfront costs of producing this discovery they are looking at this issue from the wrong end of the telescope. This is because that although form discovery may be cheap to produce and serve, there is nevertheless often a heavy price to pay on the backend for this overly broad form discovery.
For one thing, overly broad discovery will slow down the process as it often takes the plaintiff longer to try to answer the discovery. This works against the insurer who is interested in quickly getting the information needed to make a proper evaluation and get an offer out to the plaintiff or make the decision to prepare for a trial.
And there may be extra costs for the insurer associated with disputes over overly broad discovery as seen by what happened in the Kindergarten Party caper. Even if there are no disputes and the plaintiff does (eventually) comply with all discovery requests, there is still a price to pay for the insurer because the defense attorney now has to ” review and analyze” all the discovery received.
When I teach Litigation Management 101, I always impress upon adjusters the importance of serving “targeted” discovery rather than broad based discovery. It may take a little more time (and money) up front for the defense attorney (or the attorney’s paralegal) to customize the discovery, but the effort to do so is well worth it. Not only will it improve the chances that the plaintiff will more timely respond to the discovery requests which will lead to a quicker evaluation, but the costs for the defense attorney (or the attorney’s paralegal) to analyze the discovery will be far less than if they had to analyze very broad based discovery.
As Judge Sparks would say, “class dismissed!”