This problem was worse prior to the change in Rule 33 of both the Utah and Federal Rules of Civil Procedure, which limits the number of interrogatories which may be propounded. The practice of initial disclosure under Rule 26 has also helped, as has the practice of meeting for a discovery conference under Rule 26(f) in order to agree on discovery limitations and timing. Having said that, it is obvious that there is still a huge problem in this area, particularly with initial disclosures which disclose almost nothing.

The overriding principle is clear here, as it is with so many of these standards: A lawyer has a duty to represent the client zealously. That means discovering all relevant information and objecting to discovery which is privileged or not calculated to lead to the discovery of admissible evidence. It does not include objecting to discovery which the court will surely eventually order disclosed. It does not include objecting to discovery for the purpose of delay. It does not include providing inadequate initial disclosures, when the information which should be in them will have to be disclosed eventually anyway. And it does not include practice designed to increase litigation costs. Discovery can be relatively painless, or it can be like pulling teeth. If the tooth is going to be pulled anyway, the only effect of making the process more difficult is to increase cost and delay.

Many clients and some lawyers, probably influenced by television lawyers, think that litigation is a game in which the better gladiator will prevail. Lawyers should educate their clients to the simple fact that judges do not view it that way and these practices will almost always hurt the client and the case in the end. The judicial process is not a game. It is designed to accomplish justice, not to reward the more clever lawyer or litigant.

The real solution for this problem lies mostly with the judges. Judges have a full quiver of very sharp-pointed sanctions under Rule 37. Ninety-five percent of lawyers comply with the discovery standards, and always have, even before they existed in written form. We beg the Bench to use a big stick on the five percent who do not.