Discovery is propounding interrogatories, demanding documents, taking depositions, and other such things.

As a trial attorney, I see daily that, despite strict court rules forbidding such behavior, Discovery abuse is still a problem. It drives up litigation costs, delays resolution of disputes, and hinders justice.

Discovery abuse takes many forms, from “hiding the ball” to demanding information compilation and production of information which is of little relevance, but time consuming and annoying.

It’s still fashionable in divorce litigation to demand the other side produce credit cards records going back years, when it is clear the debt will be shared equally. Also, to demand that the other side produce copies of checks going back years, as if the case hinged on the cost of a meal out.

Now, of course, they are cases where such obscure records do matter, but few, indeed.

I think part of the problem is we lawyers practicing “protective lawyering.” We’re concerned that if we don’t demand the production of every single document and something goes wrong, we’ll be later blamed for not demanding ever single document. I think we lawyers have to act with more common sense.