Feb 2, 2022
In a recent opinion, Magistrate Judge Jeffrey Cole commented on a tactic that has been too common for far too long—scorched earth discovery:
LKQ Corp. v. GM Co., No. 20 C 2753, 2021 U.S. Dist. LEXIS 224287 (N.D. Ill. 2021). Judge Cole’s summary is emblematic of a major problem in civil litigation generally, where the parties take absurdly broad or narrow positions on discovery and aggressively fight about every tiny discovery issue ad nauseum. This problem is even more acute in patent cases where there are often thousands, if not tens of thousands, of purportedly relevant documents and many supposedly relevant witnesses for one side to try and depose.
While those engaging in scorched earth discovery may genuinely believe they are doing what is best for their client vis-a-vis “zealous advocacy,” in most instances the opposite is true. Lost in the repeated, often trivial discovery battles are the many tens of thousands of dollars the client spends on the billable hours incurred by the attorneys briefing the disputes for the court, sending lengthy discovery letters back and forth, and taking depositions of witnesses whose testimony is trivial to the issues in the case. Even when the client “wins” a discovery motion, the client will have spent tens of thousands of dollars without increasing the odds of success at trial. In other words, the client loses even when it wins.
At Cabello Hall Zinda, we make a concerted effort to view each case from the business perspective of our client. For example, when it comes to discovery disputes, we always ask ourselves two questions. First, is there real potential for the discovery being sought to meaningful affect the client’s chance of success? Second, if so, at what cost to the client?
We recognize that litigation is an undesired business-cost, and by always keeping these questions in mind we are able to zealously, but responsibly, advocate for our clients.