Centerfield

Aren't Discovery and Deposition In Civil Trials Really Slavery?

It seems to me that slavery exists in the American courtroom today within two widely-used and widely-abused civil trial procedures, discovery and deposition, and that it is abused badly, as slavery tends to be.

Discovery and deposition are procedures in civil trials involving the judge ordering litigants to produce information or answer questions for the benefit of the litigants and court. This is a routine request that is often made by civil lawyers and usually substantially granted in the form of orders to the litigants about what they must produce. These often involve CEO and other executive appearances or questionings by lawyers, and lengthy or difficult sets of questions, sometimes expensive and hard for the litigants to produce. There is no standard evidentiary threshold forthese requests to be granted, meaning that defendants in abusive suits often must undergo major costs without any evidence being brought.

Thus, any civil trial can run to very high costs. There are plenty of abusive litigants who file cases with little or no evidence in the expectation that many defendants will rightly compute their costs as lesser if they settle. Discovery and deposition were instituted to try to reduce numbers of cases lacking evidence. They might be reasonable if requesters had to pay all costs of answering the request.

Sometimes payment for discovery costs is requested and granted, but it's rarely requested. Are lawyers lax about about telling their clients that it's a possibility? After all, the fees are so much higher otherwise, with no incentive to limit requests.

Clubbing Seal Cubs: SCO v. IBM

The case par excellence of this is SCO's various threats, legal maneuverings, and suits against Linux vendors and major Linux users. SCO claimed that they owned rights to the Unix Operating sytem and that Linux is infringing on its copyrights. At no time did they present any evidence that they either owned Unix rights or that Linux infringed on Unix. Nonetheless, they sent many letters to Linux vendors and users, requiring payments for Linux licenses. Some paid, no doubt feeling that settlement was cheaper than civil proceedings. Red Hat Linux countersued against SCO.

In 2003 and early 2004, SCO filed suit against Linux vendors IBM and Red Hat, and Linux users AutoZone and DaimlerChrysler. The next year, SCO filed suit against Novell, the actual holder of Unix rights, for daring to say so. Despite the lack of evidence, SCO v IBM, SCO v Novell, and Red Hat v SCO all remain pending four years later.

I've been watching this trial since 2005 via the informative legal blog site Groklaw. Most of the delay in the case came from SCO asking for tons of discovery. Because there's no standard for minimum evidence, most of the non-impossible requests were granted (including plenty of tough requests). Remember, again, SCO never presented ANY hard evidence to support them even owning Unix copyright, much less of copyright infringement. That didn't stop those requests from being granted. The various defendants and Red Hat must've wasted well over $100M on this case. All wasted, unless you're fortunate to be a lawyer on the case.

More Evidence

Many civil lawyers warn their clients that discovery and deposition costs can grow high when going against big pockets. Thus, people without big pockets are discouraged from suing even when they have good cases, and people with big pockets are encouraged to sue even when they have no case.

I've been directly involved with one patent infringement case that had no evidence of infringement, and was solely filed to try and force a startup to spend more than it could afford. I've been an employee in another company that was sued over patent issues to try to raise fear and uncertainty from deterring the market and Wall Street from noticing our better and more innovative product line.

Another case is of John Ousterhout, one of the world's best computer researchers, being forced to spend over a year mostly answering discovery requests on behalf of UC Berkeley related to a course he taught. There was no evidence of UCB wrongdoing - it was purely a fishing expedition. He probably would otherwise have accomplished something pretty important in that time.

Conclusions

So, if you're a lawyer, I hope you'll think about this a bit.