If your ex-spouse sues you for custody of your children, you may open the mail one day to find one of the standard-form information demands (“interrogatories”) from the widely used lawyers’ handbook Bender’s Forms of Discovery. It contains 207 questions to answer under oath. The actual number is quite a bit higher than 207, however, because many questions are divided into a), b), c), and so on.
Question number 58 asks, “Are there any regular visitors to your home?” If so, number 59 wants to know “a) Name and address of each regular visitor; b) each person’s occupation; c) The frequency with which each person visits your home; d) How you met each person.” You must then tell what happens when each friend stops by, with separate entries for when their children come along and when they do not.
After a long section exploring the drinking habits of you and everyone else in your household comes “Social and Political Ideologies. 118. Are you a member of any associations, organizations or clubs?” You must tell how long you have been a member of each group, what you do there, and so forth. The section probing matters of race and national origin is long and unnerving, but it is outdone by the section titled Religious Beliefs: “142. Do you believe in a Supreme Being? 143. How would you describe this Supreme Being?...How often do you attend church?”
The sheer protraction of litigation, being stuck in it for years while the ruinous legal fees bleed away, is not its only terror. Another is the loss of privacy. Most people have secrets: some off-the-books income, a bad habit that’s hard to break, an irregular romance. Even persons with clean records and easy consciences are loath to reveal their bank statements and tax records or to repeat the private opinions and behind-the-back utterances they have vented about colleagues and friends. Trade formulas, customer data, and inside knowledge of markets can be crucial, sometimes the most crucial, assets of a business or organization.
Cross-examination-questioning by a hostile lawyer-has long been one of the most feared ordeals in the law. Many a blameless litigant has settled rather than face such grilling. That is one reason criminal defendants enjoy absolute protection against having to testify against themselves, without adverse inference being drawn. But those caught up in civil litigation enjoy no such protection, whether plaintiffs, defendants, or bystander witnesses.
Fortunately, there is one big safeguard for the target of cross-examination at trial: A judge is sitting there. One of the essential roles of a trial judge is to keep lawyers on the straight and narrow by preventing brutal or overly intrusive questioning. Lifting a judicial eyebrow is often enough to curb dubious conduct, but another control is more systematic and reliable. Judges enforce rules of evidence.
The exclusion of irrelevant evidence is the great defense of privacy in litigation. Most of us can take comfort in the thought that our most embarrassing secrets aren’t very relevant to whatever litigation we might land in. If your custody case were at trial, for example, a judge would soon call a halt to lengthy questioning about your religious affiliations, friends, and drinking habits unless it were leading up to a major disclosure. The opposing lawyer would not be allowed to fish around for hours in hopes that an eccentric spiritual belief or ne’er-do-well acquaintance would turn up.
The famous old textbook rules against opinion and hearsay also reduce both the time spent on the stand and the painfulness of what is said there. They let you concentrate on telling what you yourself have seen, said, and done, with a minimum of occasions for ratting on your friends or disclosing your personal views of the characters of your in-laws or boss.
The power entrusted to lawyers to compel answers to questions under oath is so extraordinary that for nearly all of legal history it was essentially limited to pleadings and trial, the two times when judges supervised lawsuits. Lawyers have all sorts of reasons to want to force their opponents to confess information at other times and places. But the old system gave them few and meager chances to carry out such advance discovery of evidence.
Most notably, they could ask a judge’s permission to conduct the sort of interview known as a deposition. The idea was simple and the limitations revealing. Some witnesses won’t make it to trial. Some die,-some sail over the seas to far places; some go mad, like Miss Flite in Bleak House, from the litigation itself or more natural causes. To avoid losing the testimony of such witnesses, lawyers could request court permission to ask them sworn questions before a notary or other officer.
On the rare occasions when lawyers could take depositions, it was under drastic conditions. Of course, their questions had to be relevant and admissible under the rules of evidence. Some courts, hewing to the principle that discovery was a last resort, forbade lawyers to compel the admission of facts they could learn elsewhere. Another rule permitted lawyers to ask only for evidence that supported their own case, not their opponent’s. The point of the own-case-only rule was to foil perjury. To reveal the whole of one’s evidence would teach a dishonest opponent exactly what he could get away with saying.
Thus matters stood for a very long time. A few minor rules aided discovery: For example, lawyers could ask that their opponents be made to present for inspection certain documents of obvious relevance to their case, such as a contract their client had signed. But for the most part they had to rely on what they could glean from friendly witnesses, their own investigations, and whatever the other side revealed in negotiations.
Over the years, state expanded the realm of discovery. New York’s Field Code of 1848, for instance, allowed lawyers to pose both oral and written questions purely to help prepare their case, without asking court permission. A few states went even further. In principle, these were startling innovations: The old right to remain silent until one stood before the judge was turning into something like an obligation to pipe up on demand. In practice, the difference was not earthshaking, mostly because for many years reformers were careful to retain the controls on what lawyers could ask.
The more discovery lawyers were allowed to do, the better they seemed to like it. The legal thinkers of the New Deal were quite smitten with its virtues. It averted the need to draw out laboriously at trial facts that could be agreed on earlier. Unleashing wider discovery, they solemnly predicted, would make litigation even more efficient. The sooner lawyers learned the truth, the cheaper they would find it to prepare their cases, and the more likely they were to settle.
In 1938, the Roosevelt administration devised the first unified code of procedures for federal courts. The new Federal Rules of Civil Procedure, which continue in modified form to this day, helped touch off America’s eventual litigation explosion. Earlier rules, by and large, had discouraged people from filing lawsuits unless and until they were sure the facts would back them up. The new spirit could be described as one of “sue first and verify later.” Under the modem rules, to quote Yale law professors Fleming James, Jr., and Geoffrey Hazard, Jr., “persons who may not know whether or how they were wronged” [emphasis added] can sue without apology or explanation.
No one wanted to send all those suits-on-suspicion to trial. And so the legal system would have to provide some way for eager who hoped they had a valid claim to “use discovery to find out – ‘the fishing expedition,’” as James and Hazard put it. And the 1938 rules opened up a new and unprecedented scope for such expeditions.
The logistics differed little from those of the earlier codes. Lawyers could demand oral and written disclosures without a court’s say-so for purpose of frank discovery. The great difference was in what they could ask. University of Michigan professor Edson Sunderland, who drafted the new discovery procedures, began by tossing out the own-case-only rule. Moreover, the questions no longer had to be relevant to the issues actually in dispute, so as long as they related somehow to the litigation’s subject matter, whatever that might mean. This allowed no end of probing on matters that were not being raised as a legal issue or had already been fully conceded. More astounding, lawyers could demand hearsay, opinion, or other information that was not admissible at trial, so long as they could argue that it might lead them to other facts that they could use at trial. Before 1938 a few questions were clearly permitted and most others were out of bounds; afterward, the litigators could venture broadly, save for a few shrinking areas of privacy protection ominously labeled “privilege.”
“Anything goes,” complained California lawyer Moses Lasky. “Attorneys must inquire into everything and prepare for everything, because no court will tell them where to stop or permit them to stop an adversary. The waste of time and money is immense.”
In one early case federal judge Robert Gibson ordered the plaintiffs in a 1942 Pittsburgh business squabble to stop their “oppressive” badgering of Margaret Bultman, secretary to the president of a railway company, after her deposition had reached 1,000 transcript pages. The judge said that in perusing the transcripts, with their “constant repetitions of matters incompetent for admission in evidence,” he had “progressed from interest to boredom, and thence to a certain amount of shock…Granting that [the discovery rule] has a tendency somewhat to encourage fishing expeditions, still the fishing is subject to some license and limit, and should not be continued day after day when the catch is composed of minnows.”
Nowadays, a 1,000-page transcript is nothing special. Former California bar president Dale E. Hanst recalls a construction contract case where the deposition of one side dragged on for 20 days. In the now-common lawsuits with multiple parties, the targets may have to go through the process for one set of lawyers after another, which in no way relieves them from going over the same ground again at trial. Of course bystanders face these ordeals too; deposing third-party celebrities has become a regular tactic, especially when publicity seeking is part of one side’s strategy.
In antitrust cases lawyers will often conduct hundreds of depositions probing a defendant business’s entire course of behavior over decades. Nicholas deB. Katzenbach, who was house lawyer at IBM during many of the years it spend fending off antitrust suits, has said the company’s chief executive was deposed by private and government adversaries for a total of 45 days.“In one of the last depositions, which was 11 years into the case, and two or three years after the government rested, the questions asked clearly indicated that the attorneys involved had never read any of the earlier depositions.” Among the questions: “When did you become the chairman?” “Where is the corporate office of IBM?” “What is the approximate size and square feet of the facility in Poughkeepsie?”
When ordered to a deposition you had better hop to it, or you risk very real sanctions. A Texas lawyer pressing a slip and- fall case against Wal-Mart Stores had the bright idea of demanding a deposition from billionaire Chairman Sam Walton, the retail magnate whose time is arguably as valuable as any businessman’s in America. Walton dragged his heels in making it to scheduled appointments, and a state judge in Fort Worth proceeded to order his company to pay a fine of $1 1,550,000 for this insult to the law’s majesty-as well as the $36,000 that a jury had awarded for the slip-and-fall injury its self.
The most common objectives in depositions include ensnaring the witness in contradictions, getting him to agree to phrasings that hurt his side’s case, and drawing out weaknesses in his character and demeanor for later attack. A key objective is to show that the lawyer is the one in control. One leading handbook advises that a simple way to get this message across is for the lawyer to ignore any questions the witness may try to ask.
James Jeans, a former board member of the Association of Trial Lawyers of America, has put the point ever so delicately in his handbook on litigation: “There is no judicial officer in attendance so the ground rules are often established by the more forceful personality.” Judge Richard Posner of the Seventh Circuit U.S. Court of Appeals is more blunt: “The transcripts of depositions are often very ugly documents.”
Written interrogatories, by contrast, might seem like a relatively calm and civilized mode of confession. The propounder gets to ask questions that cannot be answered from memory. The target has time to draft a considered response (in practice his lawyer does it), so there is less danger that a careless phrasing will do mischief. And while depositions call for the coordinated presence of meeting space, lawyers with their ticking meters, stenographers or video cameras, notaries, and whatnot-not to mention advance coaching sessions-the medium of the interrogatory is seemingly as cheap as paper.
But the yours-for-the-asking cheapness of procurement brings its own distinctive risks of abuse. These questionnaires can take minutes to draft and weeks to answer. On one side, a $15-an-hour paralegal downloads the questions from a disk of standardized “pattern interrogatories.” On the other, a team of top lawyers scrambles to draft a response after an exhaustive file search and discussions with engineers, hospital administrators, or actuaries. Los Angeles lawyer Richard Field observes that a discovery lawyer is “perfectly content to ask General Motors if it has ever received a claim pertaining to a faulty headlight before and if so, to answer twelve sub-questions as to each such claim.”
The requesting lawyer may have to pay minor copying costs, but otherwise there is little reason to go easy on the adversary. An extra 100 pages of responses, thumbed through in an idle moment, might yield a welcome nugget. In one big securities case the target received a set of interrogatories 381 pages long. Lawyers ultimately gained 150,000 pages of deposition and testimony transcripts in this case. Formbooks and disks bring imposition within the reach of the humblest lawyer: One compendium of “pattern interrogatories” for filing in medical malpractice cases goes on for 955 densely packed pages.
Some requesters don’t even bother to put their cut-and-paste questions in consecutive numerical order, let alone make sure all of them are pertinent. Atlanta lawyer Edward Savell, representing a taxi company after an accident, recalls being asked where the company learned to drive, whether it had a driver’s license, whether it was married or divorced, and whether it had any children. In a Maryland case, the form questions asked whether it had snowed on the day of an accident in July.
The safeguarding of private papers and correspondence from arbitrary search and seizure has had a long and honorable history in this country and before that in England. Even the 1938 rules protected for this dimension of privacy. Lawyers who wanted to demand documents from their opponents had to designate what they wanted with clarity; they had to show a judge good cause beforehand; and the relevance and admissibility of the matter had to be plain.
The litigation lobby devoted years of effort to battering away at this remaining protection. Why, they asked, should no-doubt-incriminating documents sit untouched in files forever simply because a lawyer couldn’t request their contents precisely enough or demonstrate their relevance in advance to a judge? The key to nailing the world’s malefactors, they maintained, was to lay open the secret memos in which they plotted their nefarious designs. A thousand crimes long shrouded in obscurity would be cleared up. They repeated like mantras their soothing assurances that the innocent had nothing to fear; nor were they above hinting that those who wished to avoid releasing their papers must have something to hide.
In 1970, they got their way. The federal government amended its rules of civil procedure to allow litigators to demand any private papers they had a mind to. The onus was now on the opponent to trouble the judge with an objection. And to cut down on those pesky objections, the revisers dropped the rule that a demand had to be backed by good cause.
Document requests soon became a major hub of litigation in themselves. In the fist five years of the IBM antitrust litigation, lawyers obtained 64 million pages of documents. Los Angeles lawyer Ronald Olson recalls a case in which his client spent nearly $2.5 million responding to discovery demands as a third party, not a litigant.
Then began the format wars. A lawyer in a liability suit against Sears demanded to see all customer complaints relating to a particular product. Sears kept its immense files of consumer correspondence organized not by product but alphabetically by individual, to provide quick turnaround in customer service. In desperation Sears offered to fly the lawyer to Chicago, plop him down amid the file cabinets, and let him browse at will. No cigar: He wanted Sears to do the compiling. A federal judge agreed. The judge didn’t deny that Sears had good reason to arrange its filing system the way it did, but declared that allowing it to plead impracticality would encourage other companies to set up their files deliberately to repel discovery.
The next step came in 1978 when a judge ordered a target company to create a computerized data bank for the convenience of the lawyers suing it. And in 1987, a judge ordered Wyeth Labs to establish a special research library for the more than 200 lawyers who were suing it over the alleged side effects of vaccine formulations fully approved and endorsed by federal authorities. The judge explained that Wyeth need not fear the disclosure of its internal operations to competitors because it had already-under litigation pressure, not from lack of support in the medical community-pulled the vaccine off the market.
The hope that expanded discovery would cut the cost of litigation was abandoned early on. Advocates had promoted discovery as a way to dispose of unfounded suits and arguments; it quickly emerged as a way to prospect for more and wider legal claims. Cases settle before trial at no higher a rate here than in Britain, which has kept up strong protections for pretrial privacy. A major 1968 study by academics highly sympathetic to the new order conceded that it “does not appear to save substantial court time. On the evidence we obtained discovery cannot be called an efficiency-promoting device.”
One reason discovering is so expensive is that garnering data relevant to a client’s case is only one of its objects and often a minor one at that. A favorite catch is data on the opponent’s fiscal situation. A Legal Services Corporation internal manual for litigators explains that the chance to obtain “information about a person’s financial resources and ability to withstand certain sorts of losses” may be “one of the most important reasons you want to go to court.” How well a defendant is insured, for instance, is seldom relevant to the merits of a case against him but highly relevant in extracting top dollar in settlement.
Competitors, unions, and pressure groups love to rummage among the accounts, customer lists, engineering memos, and board minutes of the companies they sue. “Executives who keep little notebooks with scribbles in them are asking for trouble,” says Miami lawyer Lawrence Bemis. “One of the first things a good litigator does is ask to see them.” In some cases the secrets sought are more important than the relief, and one observes an odd negotiating posture: The defendant offers to pay the full value of the claim, the cagey plaintiff refuses to hear of it.
Along with the rest of its bounteous harvest, the fine-meshed discovery net hauls to the surface a great many curious and wriggling creatures from the lower depths. It’s standard in discovery to probe for intimate or embarrassing revelations that a target wouldn’t want to come out at trial. Divorce and custody lawyers now routinely demand that their opponents submit to examination by a hostile psychiatrist and to hair, blood, and urine tests that might turn up signs of drug abuse or the AIDS virus. Such physically invasive measures still require advance court permission, but in line with the spirit of the rules judges seem to resolve doubts in favor of more inquiry.
The late Supreme Court Justice William O. Douglas warned of the dangers of leaving people at the mercy of medics hired by their adversaries, with no one present “to stop the doctor from probing this organ or that one, to halt a further inquiry, to object to a line of questioning.” But Douglas expressed those libertarian scruples in a dissent. The majority declared it perfectly proper to turn a litigant over to examiners who would search on a clinic table for physical or mental frailties that might have led him to be negligent.
The shadier sorts of lawyers have long fed pretrial tidbits to scandal sheets or reserved them for outright blackmail. Such abuses may be inevitable on the tortured fields of family law, where courts regularly probe the most personal issues.
But the discarding of the old discovery controls has allowed them to blossom forth in many other types of litigation as well. One half-protection remains for the privacy of tax returns, trade secrets, and love letters: The disclosing party can ask the judge to order the opposing lawyers not to release them to outsiders. The granting of one of these “protective orders” is little comfort, of course, if the real goal of the opponents is to get their hands on the material for their own future use. And unsatisfactory as it is, even this degree of protection has been hard to achieve in practice. Where many lawyers in a suit get to see the same documents, as is common these days, the cheater who leaks the material to a tabloid or business competitor may leave no fingerprints.
“If you are not bound by the oath of confidentiality and get hold of the materials, you cannot be held civilly or criminally liable for releasing the materials,” the Legal Services manual notes helpfully. It explains that any “juicy tidbits” from discovery “can be plastered on flyers or posters” later on. “Discovery items need not be used in total; they can be excerpted for dramatic effect.” Incidentally, if the target successfully resists coming across with his tax returns, the manual for these federally funded lawyers says the thing to do is “cultivate relationships” with “divorced or estranged spouses” who “have greater access to this information than any other person.”
Another LSC training program puts it this way: “The opposition may seek a protective order to tone down your aggressiveness in using discovery. You may be barred from giving information thus gathered to the [advocacy organization with which you are working]. You cannot be barred from giving information to your clients. What your clients do with the information (i.e. give it to their organization) is their business.”
For whatever reason, confidentiality breaches routinely go unpunished, and many a target organization that summarily wins the underlying lawsuit loses the war for its privacy. Inevitably, some lawyers now argue that this is really a good thing, the lawyers should routinely enjoy authority to release pretrial data to the general public when the case never gets to a trial. Why make our lawyers go to the trouble of requesting the same items when the litigation community could share the findings so much more efficiently? Why not treat the public to any details unearthed through allegations of private misconduct whether those allegations prove well-founded or grossly unfounded? A few judges, in line with these views, are predisposed against granting protective orders at all. And ATLA, the plaintiff-lawyers’ lobby, has launched a public campaign against protective orders; the Texas courts in 1989 cooperated by making it far harder for the victims of discovery in that state to preserve confidentiality.
Every discovery excess is in the end based on the same rationale: the search for the totemic, Grail-like “smoking gun.” But it’s a funny thing about smoking guns. Given a big enough file cabinet to search in, or a long enough list of questions to ask a single parent, a lawyer willing to spend some time at it can quite often find something that can be portrayed as the fabled firearm. Were there harsh words in the dismissed worker’s personnel folder? That shows the managers were prejudiced against him. Were there kind words? That shows they couldn’t have been displeased with his job performance. Were others fired in the same circumstances? Then this employer has made a habit of trampling workers’ rights, and a large punitive award is needed to mend its ways. Were other workers let off with warnings? Then this victim was singled out for arbitrary treatment and deserves to win.
Any experienced advocate can play these games. Among the favorite smoking-gun generators are memo debates or unheeded suggestions within an organization. The sought-after memo will advise the hotel to dismantle the diving board, the brokerage to go easy on the risky investment, the magazine to kill the hard-hitting investigative story, the hospital to close down the vaccination program that has attracted malpractice suits.
The great advantage for discovery litigators, at least until the system adjusts to the loss of privacy, is that they get to browse among letters and memos written long before, with no thought of litigation. These are far more likely to mortify in retrospect than the considered words of persons who know what they say will be held against them. No long-forgotten scratch-pad doodle or marginal comment on a while-you-were out slip is now too obscure or insignificant for lawyers to seize and triumphantly decode as evidence of bad faith.
Especially dangerous are the banter, devil’s advocacy, and striking of attitudes that seem inseparable from professional camaraderie. The trap for the unwary, the source of surprise in litigation, has now become life itself, and the everyday instinct to record and comment on its events. Advocates promised that discovery would be calmer and more rational than the “ambush” of revelations at trial. It emerged as a source of mingled dread and ennui, a reign of terror combined with a rain of paper.
The power to extract confessions and inspect private correspondence has long appealed to a certain type of ambition. Were it used without restraint, a certain type of justice might be very well served for a time. Every diary, dossier, and archive would be thrown open to inspection. Each of us could be made to answer questions about our past deeds and thoughts and whereabouts, with our answers cross-checked against those of our boon companions and partners in mischief, with a new round of questioning to follow, as in a well-run prisoner-of-war camp, boys’ boarding school, or ecclesiastical body for the suppression of heresy. Many long-suspected sins and scandals, and others not even suspected, would at last be brought to light, and the reign of the saints would be complete. The human race would walk around with a perpetual blush on its face, as perhaps it ought.
Few of us would want to live in such a world for long (though we might consent to hang around for the first thrilling revelations). We value our privacy, although we wish we could change the guilty habits it shields; we respect the privacy of others, although we know it sometimes conceals real wrongdoing. Then, too, we fear that no one could be safely entrusted with the power of the inquisitor. We would never in this country entrust such a power to the public magistrate, even in a time of emergency and civil disorder. It would too obviously be a weapon of tyranny. And yet somehow we entrust it to private lawyers who use it for private profit.
But not against each other. In the landmark 1947 case of Hickman v. Taylor, Hickman had the impertinence to ask, not for the list of prescription drugs his opponents took, not for the telephone logs from their private residences, not for the diaries they had kept since childhood, but for some of the output of their lawyers-specifically, memoranda and deposition transcripts. All the well-worn arguments about making sure both sides have early access to information, about saving on redundant expense, about avoiding surprise at trial would seem to have been at their very strongest here. But the Supreme Court rebuffed Hickman’s request. It declared a bulletproof discovery privilege for lawyers’ own work.
The reasoning of the Court’s Hickman opinion merits careful study. “It is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel,” the Court pointed out. “Were such materials open to opposing counsel on mere demand,” it added, “much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. ”The consequences of this loss of privacy would soon follow. “Inefficiency, unfairness, and sharp practice would inevitably develop” in lawyers’ everyday work. “The effect on the legal profession would be demoralizing.”
The breaching of the “heretofore inviolate,” the dangers of proceeding on “mere demand,” the risks that frank opinion would no longer be set to paper, are compelling concerns, no mistake about it. Too bad they didn’t loom equally large when it came to the professional confidentiality of accountants, university tenure committees, adoption workers, and consulting psychiatrists. The demoralization of the legal profession was avoided, and a narrow escape it was. The demoralization of everyone else was allowed to proceed apace.
Walter Olson is a senior fellow at the Manhattan Institute. This article is adapted from his forthcoming book, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (E.P. Dutton/Truman Talley Books).