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Scorched Earth Litigation: A Lose-Lose Proposition for Clients

In a recent opinion, Magistrate Judge Jeffrey Cole commented on a tactic that has been too common for far too long—scorched earth discovery:

​The attorneys in this case have struggled with discovery and simply have not been capable of following the directives of local Rule 37.2. Plaintiff alone has filed six discovery motions totaling about 540 pages of briefs and exhibits . . . , all in a case about car hoods and grilles that plaintiff once characterized as simple enough that it did not even have to comply with its obligation to perform an ESI search. It is very likely that the case could have been litigated in a much more simple and efficient fashion but the attorneys on both sides have chose more of a scorched earth strategy. That’s a strategy that has become more and more common, for some reason. And so, here we are again. One could not, without a trial and testimony from all the attorneys involved, get through to what has actually gone on amongst the lawyers in discovery in this case. Accusations are made, back and forth, on each side, through nearly 500 pages of filings. . . . As is common in cases that have gone off the rails, each side has a diametrically opposed view of which law firm is made up of heroes and which is made up of villains. All the court can do at this point, is make a decision within the extremely broad discretion it has, Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013), with a visceral feel regarding the history the attorneys are fighting about.

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.


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