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Civil Litigation,
Judges and Judiciary,
Alternative Dispute Resolution

Jun. 20, 2018

Hitting discovery disputes out of the park — with baseball arbitration

I write on the most common discovery problem — and propose an unusual solution: baseball arbitration.

Civic Center Courthouse

Curtis E.A. Karnow

Judge, San Francisco County Superior Court

Trials, Settlements

Judge Karnow is author of "Litigation in Practice" (2017) and current co-author of Weil & Brown et al., "California Practice Guide: Civil Procedure Before Trial" (Rutter).

With baseball arbitration, each party stakes out the most reasonable position -- because if it doesn't, the judge will pick the other side's proposal. (Shutterstock)

I write on the most common discovery problem -- and propose an unusual solution: baseball arbitration.

The basic discovery dispute pits burden against relevance -- but can pose great difficultly. Because the two interests are not on the same scale, it's not clear how much burden outweighs some given level of relevance. Burden can and usually should be measured in some way (such as time or money expended), but relevance for discovery purposes isn't usually quantifiable at all.

Actually the problem posed by this most humble of discovery problems is worse. The seemingly simple relevancy issue hides two separate factors: the pertinence or materiality of the issue in the case and the utility or relevancy of the specific discovery at stake to that issue. There is a further factor, usually hidden in the evaluation of burden: the availability of alternative means of discovery. And we also consider the stakes of the case (an aspect of proportionality): we don't impose a million dollar burden where the stakes are $1,000.

So for example if Alice wants a document from Bob, the burden analysis will involve (a) the stakes in the case (e.g., lots of money versus not very much), (b) where else the data on the document could be found (nowhere else versus from a lot of different places including Alice's own files, implicating an analysis of the burden on Alice to get the data from some other place), and (c) how much time and money it will cost Bob to produce it. The other factors are: what issue the document relates to (a core issue versus outlier), and how important the document is to that issue (it will help a little versus help a lot). Now we're up five factors. Each is on a spectrum (from a little to a lot), and with exception of Alice's and Bob's burdens, each spectrum is entirely incommensurate with all the others. (See my "Complexity in Litigation: A Differential Diagnosis," 18 University of Pennsylvania Journal of Business Law 1, 33 n.71 (2015).)

Similarly, intractable are many disagreements on which search terms, custodians, locations or types of documents to search: these are all variants on the basic burden versus relevance fight. Lawyers on one side may object to any burden, and the other side pushes for every document; both sides brief the discovery motion as an extension of their meet and confer, staking out extreme positions so as to pull the court as far as possible towards their extreme. The motion is just an extension of the bargaining between the parties. And the results are unpredictable, because different judge will decide the issues differently, all within their broad discretion.

There is an alternative, which pushes the parties towards reasonable and away from extreme positions: baseball arbitration. There, each side briefs the issues as usual, but simultaneously presents a solution and the judge selects one without modification. With baseball arbitration, each party stakes out the most reasonable position -- because if it doesn't, the judge will pick the other side's proposal.

And the truth is, the lawyers know a lot more than the judge about the real burdens, and the true utility, of the discovery at issue. They know what a good solution looks like -- but ordinarily they won't offer it, for fear of being pulled away from it by the other side's extreme position. In bargaining, few parties start with their most reasonable position. In baseball arbitration, they have to. The incentives align.

Judges probably can't insist on baseball arbitration, because it limits the exercise of the court's discretion. Parties' consent is likely required. But why would they not agree? The process empowers the lawyers to fix a reasonable solution, and avoids what might seem to be an arbitrary result.

#348014


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