A Riff on Riff

Recently, in these pages and elsewhere, Judge Lawrence P. Riff, a former Supervising Judge of the Los Angeles Superior Court Family Law division - and now in a complex civil assignment - made fresh one the stalest problems of our profession: hopeless, useless, wasteful, uncivil and unprofessional discovery abuse. He even urged general counsel to take responsibility and stop paying for their outside counsels' bad behavior.

At base, Judge Riff implores litigants and their lawyers to forgo the wasteful (and sometimes unethical) weaponization of discovery practice in favor of a streamlined and cooperative approach - the approach, by the way, already required by law. This is not weakness, he teaches; it is strength. Judge Riff's observations and comments, focusing on civil litigation, are even more apt in family law where discovery abuse is, likewise, rampant.

We pick up where Judge Riff left off. Unlike civil litigation, family law litigants owe ongoing fiduciary duties to their soon-to-be former spouses under the Family Code. As pertains to support and property matters, they are affirmatively obligated to produce and thereafter supplement information disclosures to the extent necessary to ensure that each side is "[m] aking full disclosure to each other of all material facts and information regarding the existence, characterization and valuation of all assets in which the community has or may have an interest ..." This includes equal access to all related information and records. (Family Code Section 1100.) This obligation exists without the other party even asking for the information or asking in a poorly framed and even objectionable discovery response. (Family Code Section 1100(e).)

In light of these broad and categorical statutory disclosure requirements, one would expect that discovery motions are uncommon in family court. Sad to say: not true. Just as in civil litigation, family law litigants and their counsel who should know better also weaponize discovery. Why? Under the misguided belief that burying their adversary in a mountain of wasteful discovery requests or playing "hide the ball" when responding to discovery will somehow force their adversary to throw up their hands and abandon the fight. Lawyers being lawyers, however, this tactic virtually never works. It is instead throwing gasoline on a fire, and it unrestrainedly blows up the clients' legal bills. It also results in sanctions, delay, overcrowding of judicial calendars, judicial ire and the general debasement of the rule of law.

If sharp discovery practices are ineffectual and wasteful, why are they so common? As Judge Riff observes, our culture of litigation is to blame. A great many family law counsel have weaponized discovery for so long, it has come to be seen as "the way it is done" and cooperation and transparency is seen as ineffectual and weak. Our younger colleagues know no other way because they have so few role models. Moreover, a lawyer preaching a righteous path in discovery has a hard sell to an enraged client when the adversary is exhibiting obstructionist and uncivil discovery behavior.

So, what is the solution?

Step one: Heed Judge Riff's advice and recognize that continuing the discovery status quo is performing a disservice to our clients, our profession and to the rule of law.

Second: Change our litigation culture by adopting new strategies and methods that streamline information exchange yet preserve client and judicial resources.

Third: Consider that an ounce of prevention is worth two pounds of cure. That is, for cases large enough to warrant the added expense, at the outset of litigation the parties should retain "a discovery mediator" and vest him or her with the powers and responsibilities to determine the information that must be exchanged to prepare their parties' cases for settlement or trial. This starts with meeting separately with the parties to learn of the parties' information needs. Then the discovery mediator can work with the parties to identify with precision the categories, scope and timing of information to be exchanged. This includes reviewing proposed written discovery requests and proposed objections prior to service. The parties must empower the discovery mediator to "speak truth to power": if the proposed discovery (or proposed objections thereto) is inappropriate, voluminous, intrusive or harassing, the discovery mediator will say so - in the presence of the client. Parties should agree that no written discovery can be served until receiving the discovery mediator's approval. The discovery mediator should then engage in a mediation of any resulting discovery disputes. Parties may agree to permit the mediator to become a "discovery arbitrator" in the face of an unresolved discovery dispute--or, probably unwisely, the parties can agree to take their dispute to the home court judicial officer on a formal motion.

Our "broken discovery culture" (as Judge Riff calls it) can be fixed and then we will not need discovery mediators. But until then, while the discovery mediator represents an added cost, in the mid- and long-runs, the savings to the parties of avoiding prolonged discovery court battles and streamlining the exchange of needed information is well worth it.

Lest you think that we are speaking in a vacuum, we did almost what we have proposed and it worked fabulously (our clients were not present during our multiple "discovery mediation sessions"). Our clients saved millions of dollars in fees and did not experience the delay attendant to the repeated cycle of discovery meet and confer and motions and commotions.

It is time for a new way of doing business in family law. Let us resolve to take the "ego" and posturing out of the information exchange process. And let us seek the assistance of discovery mediators to promote proper and cooperative behavior on all sides