Discovery is the primary reason that civil litigation is so expensive for both plaintiff and defendant.  Clearly, discovery is important.  It is through discovery that cases are often won or lost, and its importance cannot be understated.  But too often, the parties lose focus of what is really at stake and and discovery skirmishes are allowed to take center stage.  The result is an unnecessary increase in cost with very little value added.  But how can a party avoid costly mistakes in the discovery phase of litigation?  Consider the following ideas.

Choose Your Battles Wisely

Nobody likes discovery disputes, particularly judges.  The last thing you want to do is to be viewed by the judge as obstructionist.  Judges abhor obstructionist litigants, and you will subtly prejudice your case by unnecessarily opposing discovery requests.  Moreover, being obstructionist will not usually achieve positive or lasting results.  Litigants can rarely prevent the critical information or documents from seeing light of day.  Moreover, you will spend a substantial amount of money litigating discovery issues that will, more often than not, be decided against you.  Of course, there will be times when a discovery request is clearly irrelevant to the case or documents should be withheld on privilege grounds.  By holding your fire and targeting only the most troublesome discovery requests, you preserve your reputational capital with the court.

Set a Positive Tone Early

Demonstrate to the judge at the earliest opportunity that you are committed to providing liberal discovery.  Parties that take the initiative in proactively providing discovery send a message that they have nothing to hide.  Moreover, judges are particularly likely to take notice if a party is proactive in avoiding discovery disputes, and that party is likely to obtain some measure of capital from the judge that may be useful in later disputes that arise in the case.  If a discovery dispute does ultimately arise, you are much better positioned if you have earned a reputation a party committed to allowing good-faith discovery.

Be Willing to Compromise

The unwillingness to compromise is probably the single greatest contributor to the cost of discovery.  Sometimes, compromise is difficult.  You may, for example, want to avoid producing confidential business information that would provide your competitors with an advantage if it were publicly disclosed.  You may have a large set of privileged documents that simply cannot be disclosed, and so compromise is seemingly impossible.  Usually, there is some compromise that can work to your advantage.  Take, for example, the extreme case of privileged information that cannot be disclosed without waiving the attorney-client privilege.  It is not uncommon for an opposing party to dispute whether certain documents are privileged, and such disputes are often escalated into formal disputes requiring the judge to decide a motion to compel.  Before the discovery dispute gets to that stage, the more savvy attorney will suggest an alternative resolution mechanism, such as submitting a certain number of documents to the judge for in camera review.  Not only will such a procedure help avoid costly motion practice, but the judge will usually appreciate the fact that the parties are working cooperatively to avoid discovery disputes.