Originally published in IADC Committee Newsletter - November 2011.

The bulk of counsel’s time in defending a lawsuit is spent navigating the discovery process, and all too often, struggling to protect the client against burdensome and oppressive discovery requests. Abusive discovery requests can result in the entry of onerous discovery orders despite well-reasoned advocacy by defense counsel. Absent a change in the jurisdiction of the federal courts of appeal, however, defense counsel’s options for appellate review of discovery orders are limited.

It is commonly recognized among the courts that “[t]he liberal discovery rules of the Federal Rules of Civil Procedure offer opportunities for harassment, abuse, and vexatious imposition of expense that can make the mere pendency of a complex lawsuit so burdensome to defendants as to force them to buy their peace regardless of the merits of the case.” Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1083 (9th Cir. 1976). The district courts have “the primary responsibility to police the prejudgment tactics of litigants.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985). Consequently, federal courts of appeals instruct district courts to be more aggressive in maintaining a tighter rein on the extent of discovery and discouraging the excessive use of discovery. See, e.g., Koch v. Koch Indus., Inc., 203 F.3d 1202, 1238 (10th Cir. 2000).

Article authored by McAfee & Taft Attorney: Michael F. Smith and Alison A. Verret.