We are pleased to announce the release of Volume One of the IT-Lex Journal, which comprises the winners of our inaugural writing contest for law students. You can read the Journal right now for free – all you have to do is register and sign in as a Friend of IT-Lex, also for free.
The first-place winner of the contest was Anthony Mendenhall, a 2013 graduate of the University of Tennessee College of Law. Tony discussed his essay, entitled ‘Due Process in the Information Age: The Civil Discovery Crisis‘ with Judge Facciola, Judge Nolan and Ken Withers, in a memorable panel at last year’s Innovate Conference, and we asked him to talk about his chosen topic below. Remember, you can read this article, and the two other winners, on our Journal page.
Tony Mendenhall: Prior to attending law school I worked for one of the big four accounting firms as an IT consultant. My work experience naturally led me to taking an e-discovery class that was being offered for the first time by Prof. Paula Schaefer at the University of Tennessee. As part of the class we were required to do a research paper where we could select our own topic. At the same time, I was also taking a seminar from Prof. Glenn Reynolds of Instapundit fame entitled “Law, Science and Technology Seminar” where the entire grade was based on a paper and presentation on a topic of our choosing. Additionally, that semester my wife was pregnant with our second son and I was working as a graduate assistant at the University’s Office of Information Technology where, because of my prior work experience, they basically had me fill half the spot of a full time employee who had just left. Needless to say, I took the opportunity double up on topics so that even though I wrote two different papers with two different theses, the background material and many of the source materials were the same for both papers. Because I knew I was going to be spending so much time on the topic I was going to write on, I decided to pick a topic that I felt passionate about.
The whole civil discovery system has always seemed pretty messed up to me. I wanted to take a crack at digging into the problem. My background at that point had been in system development work, and I think one of my personal strengths is being able to design or take apart systems and configure them in a way that is most efficient. It’s what I used to do with IT systems as a consultant and in part what I do in my position at the law firm that I work for now. One of my biggest peeves is the producer pays rule. As a system, it’s convenient for the bar and bench, but a horrible system from the client’s perspective. The incentives are all perverse. Anyone who hasn’t been inundated or initiated can quickly see that.
At its worst, a request for production is like having the court order you to hold still while a bully sucker punches you in the gut. Then you have to pay the bully for time spent punching you in the gut. Probably the most absurd thing about the producer pays rule is its sacrosanctity among the bar and bench. There is this assumption that the issue of who pays for the costs of discovery was carefully thought out when the Rules of Civil procedure were revamped in the early twentieth century. This simply isn’t true. At the time the question of who paid for discovery was inconsequential due to the small cost involved in producing discovery.
There also is this real fear that if we change to a default rule where the requesting party pays for the costs of discovery, we’ll be oppressing indigent parties everywhere and that we’ll see a massive wave of injustice. I just don’t buy that. You can create a system that better aligns the interests and costs of the parties while still protecting indigent parties. For example, I think if you reversed the default position of who pays for discovery, cost shifting decisions by the court become much easier. I could keep on going, but I think I’ve made my point.
The more and more I found out about the process of civil discovery, the more and more it felt like civil discovery violated the spirit of due process, specifically procedural due process. At a very basic level, it seems horribly unfair to have to pay the costs of packaging up material that the opposing party is going to be using against you. Especially when so much of the production results in so little value in helping to resolve the issues at hand.
There were all these reason I could think of how civil discovery is inefficient and has misaligned incentives. Coming up with examples was easy. Weaving them into a framework was the hard part. Especially because discovery issues hardly ever make it to appellate courts. There isn’t much to work with as far as theory goes. The sexy stuff is substantive due process. There isn’t as much on procedural due process. There is almost nothing theoretical on procedural due process as it relates to discovery.
It finally started coming together one day when I was perusing the Volokh Conspiracy. I happened across Andrew Blair-Stanek’s article Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery. Andrew Blair-Stanek’s framework finally provided a vehicle by which I could make a due process argument against the producer pays rule.
My paper for the “Law, Science and Technology” class with Prof. Reynolds ended up being very high level and theoretical while the paper for Prof. Schaefer’s class was much more practical. I got positive feedback from both professors and decided to merge both papers together as part of a directed study project that I could get a few credit hours for over the summer break. While I ultimately ended up going a different direction for the final directed study project, I had mostly completed the work to mash up the two papers before changing directions.