Live by The Sword. Die by the Sword!

Today, like most days, the first thing I do...umm....the second thing I do is look at my Blackberry to find Blawgletter's daily email and post. The email strategically sent so that it will arrive in my inbox in the top 10 of the reading batting order. Well done Barnett!

Today’s Blawgletter post tells us of yesterday's 9th Circuit decision in Ahanchian v. Xenon Pictures, Inc., 08-56667, slip op. at 18151-52 (9th Cir. Nov. 3, 2010). In that opnion, the Ninth Circuit took great pains to express considerable dislike for counsel's role in “goading” a district judge into “Kafkaesque” rulings.
The opinion, according to Blawgletter, held that “the district court abused its discretion in denying a request for more time and erred in granting summary judgment (and awarding almost $250,000 in attorney's fees!) against the plaintiff, who claimed to have authored skits that appeared a National Lampoon's TV show.” Of the opinion, Blawgletter observes:

“This sort of thing happens, on both sides of the docket. The offending lawyers may think that crossing the line into perfidy against the profession won't hurt them, at least not in the short term and possibly not ever. And that their client will pat them on the back for pulling out the brass knuckles. And, who knows, that maybe they'll get a reputation for hardball and thus win the fear of opponents and admiration of potential clients.
That stinks. We, lawyers and judges alike, have to police ourselves. And so Blawgletter sincerely thanks and earnestly congratulates the panel for letting the rest of us know that we have brothers at the bar who have sinned against us all.”

This commentator, as regular readers know, has seen more than his fare share of discovery battles – many reaching the litigation equivalent of nuclear warfare. In the first five years of my career alone I had the great honor to witness first hand dozens and dozens of trials, and all manner of lawyer styles. When I left public service to join my first law firm, I was surprised at the level of civility demonstrated by lawyers on both sides in those high-stakes cases. Are these lawyers being advocates for their clients, I thought? I soon learned that when you have a case, you dash to the courtroom as quickly as possible. Maybe that’s why I stayed with law firms for almost 20 years.  Discovery disputes not only get in the way, they signal weakness, and not just to the opposition. Judges (like those on the 9th Circuit) are just flat sick of aggressive discovery tactics targeted at delay and shifting focus from the facts. That is not to say that there are not genuine discovery disputes - there are. This commentator has assisted in countless disputes where one side or the other is hiding the ball. However, as Blawgletter observes, overzealous advocacy is far too common.

Unfortunately, eDiscovery is a fertile ground for these discovery disputes on a very large scale costing hundreds of thousands, sometimes millions of dollars to fight. If you find yourself in one of these battles, at least remember your ethical obligation (directly or, in my case indirectly) to be civil and professional. You never know, giving your opposition the benefit of the doubt may just bring rewards. I can tell you based on experience, it will with the Judge.  If you choose the sword, and it may well be unavoidable, make sure you’re willing to die by it.  Warfare is always a two way street.