The second session of the IBA International Litigation Conference began with a short dramatic work. Melanie Schweitz of Bell Canada and Stacey Blaustein of IBM played the roles of corporate counsel realizing their company was becoming enmeshed in an international litigation. Frederick Acomb of Miller, Canfiled (Detroit), Jeff Gallway, of Blake, Cassels & Graydon (Toronto), and Robert Wheal of White & Case (London) played the parts of outside counsel, advocating expensive and extravagant ways of conducting discovery. While I appreciated the attempt to break free of the paper-comment format typical of these conferences, the writing was didactic. The acting was slightly more believable, largely because lawyers were playing lawyers. The piece closed after one performance.
Despite the qualities of the drama, the session raised important questions about the place of discovery in modern litigation. A consensus began to emerge in the discussion portion of the session that modern discovery is in trouble, and must be changed. It has gotten expensive, consuming time and treasure, and no one in the room full of seasoned litigators could point to one instance where extensive discovery produced the “smoking gun” which won the case. The opinion was held by both civil code lawyers, familiar with systems with limited discovery, as well as common law lawyers, who one might expect to be sympathetic to wide-ranging discovery. They are not.
The suggestions for controlling costs of discovery ranged from rules regarding “proportionality,” designed to limit discovery in a way commensurate to the size of the case, to outsourcing discovery, and the use of technology, such as predictive algorithms, to search, evaluate, and categorize large amounts of documents. While all of these suggestions are useful, they are tinkering at the edges, rearranging deck chairs on the proverbial sinking ship. For example, the use of technology to sort and evaluate large amounts of documents will, in the long run, only lead to increases of what can and will be produced in response to discovery requests. Technology increases capacity, which is soon met.
Clearly, what is needed is a re-evaluation of what discovery is and what roles it really plays in modern litigation. While it is intended to eliminate surprise and further fairness, it is often used as a blunt instrument of submission. The needed change is ultimately a cultural change, a change in what lawyers and judges are and what they do. To some extent, the change is already happening – in international arbitration, where lawyers and parties are willing to limit discovery in the interest of good business and good business relations, and arbitrators are empowered to design and enforce discovery regimes appropriate to the matter. If litigation cannot learn to import some of these methods, it will mean the increased growth of arbitration, overtaking litigation, especially in international business disputes.