Unlike other countries, the so-called “American Rule” requires each side to pay their own attorney’s fees in litigation regardless of who wins. Unless a statute or contract shifts attorney’s fees from one side to the other, or one side behaves so badly that the judge awards attorney’s fees as a sanction, a litigant generally can’t recoup the money paid to his or her attorney from the other side — all the way from the beginning of the lawsuit, through discovery of evidence during the pre-trial phase, and at the trial. Of course, litigants want to pay as little attorney’s fees as possible. The prohibition against attorney’s fee shifting generally favors the person filing the suit (the plaintiff), because that person wants to sue and does not have to worry about paying the defendant’s fees even if the suit has little merit. Defendants are usually unhappy to be dragged into a lawsuit to begin with, let alone pay attorney’s fees to defend the suit.
Once a case gets into the weeds – and by that I mean the case enters the phase where time-intensive tasks for collecting evidence must be completed before the case heads to trial – the “American Rule” of attorney’s fees can impose financial pain on both sides, and each party has to gauge whether the amount they’re spending on attorney’s fees makes sense compared to what’s at stake in the lawsuit.
One aspect of a case that can take a lot of time – and by extension incur hefty attorney’s fees – is a discovery dispute that ends up before a court. During the pre-trial phase of a case, each side gets to “discover” potential evidence from the other side by using tools such as interrogatories (written questions), requests for production of documents and electronically stored information, and depositions (live questions answered under oath in front on a person recording the testimony). When one side thinks the other isn’t answering discovery requests properly, or thinks the other side is asking inappropriate questions, the party may file with the court a motion to compel more responsive answers, or a motion for protective order to prevent the discovery from happening. Before filing a discovery motion with a court, the rules of civil procedure require the party to meet and confer in good faith with the other side to resolve the dispute without involving the judge. The party must certify to the court that it tried to confer before filing a motion to compel or for protective order.
In practice, attorneys on opposite sides in discovery disputes sometimes give little ground during the meet and confer process, but once they get in front of the judge in the courtroom, they are more willing to compromise. I observed a large volume of discovery disputes as a law clerk, and it was often interesting to read about disputes that looked like World War III in the parties’ papers, but that ended up as peaches and cream (with lollipops for dessert) once the parties got before a judge in the courtroom.
That’s what makes the U.S. District Court’s new rule on discovery disputes so interesting. The rule requires opposing parties to confer in good faith before filing a discovery motion. Notably, this new rule appears to be broader than the rules of civil procedure, which limits the good faith conferral requirement to motions to compel and motions for protective orders. The new rule seems to apply to any motion “regarding discovery disputes,” which could include things like motions for sanctions for non-compliance with a discovery order.
More notably, the new rule also requires a party to request an informal conference with the Court before filing a discovery motion (I used to think judges wanted to avoid discovery disputes, but this new rule plants seeds of doubt). The likely impact of the new rule will drastically reduce the number of discovery disputes that result in formally filed motions, because either attorneys will be much more prone to resolve their disputes with court intervention through the informal conference, or they will have an incentive to resolve the dispute so that they don’t have to involve the court and appear intransigent.
The reduction in discovery motions will have at least two immediate effects. Number one, the use of “informal conferences” is usually by telephone or in chambers and not on the record, which means fewer discovery disputes that involve judges will be aired in open court before the public. Number two, the new rule will probably save litigants well over $100,000 in attorney’s fees per year. Discovery motions are not the most glamorous aspect of lawyering, and they are very labor intensive. Between the time to draft a discovery motion, for the other side to draft an objection, and for each side to prepare for and then participate in a discovery motion hearing, a conservative estimate is at least 15 hours of time (not including all the time it takes the court to prepare for the hearing). I’d estimate that there is at least one discovery motion filed per week in the Rhode Island federal court. Multiply 15 hours per motion by 52 motions (one per week), and you’re looking at a minimum of 780 hours in attorney time per year. At a blended rate of $250 per hour (a blended rate takes into account very high priced attorneys and more junior attorneys by averaging them together), 780 times $250 per hour is $195,000 in attorney’s fees. By contrast, informal conferences tend to be quick and much less time consuming than drafting and arguing a discovery motion, and require very little prep time by the court. Let’s assume that at least some of the discovery motions would still be litigated, and the parties’ informal conference with the Court goes for 30 minutes. You’re still looking at about $100,000 in savings for attorney’s fees per year on discovery disputes. Take that American Rule!