The Honorable Youlee Yim You, Circuit Judge Multnomah County Circuit Court
Why do discovery motions have such a bad rep? Do judges really hate them so much? What can we do collectively, as judges and attorneys, to improve the process so it is more efficient? Here are some of my thoughts. I am interested to hear others.
1. Take the extra time to truly meet and confer.
Very frequently judges will be in the middle of a motion hearing when an attorney from one side will say to the other side, “Oh, I did not realize that is what you were asking for,” or tell the judge, “That is different from what opposing counsel told me he/she wanted.”
To avoid this from happening, consider picking up the phone and calling opposing counsel rather than using email. Email exchanges, while convenient in many instances, are no substitute for a true conversation. (And to the extent you do email, keep in mind that whatever you say is in writing – forever. You can expect your snarky comments will be included in any future discovery motion that is made.)
2. Winnow your requests.
When drafting your discovery motion, consider what you really need and whether you can winnow your requests. For judges, 35 requests mean 35 separate decisions, which is a daunting and time consuming task. While it is a judge’s job to make lots of decisions every day, we certainly suffer from decision fatigue.
Also consider carefully the scope of what you are asking for. When you tailor your request to something reasonable you don’t run the risk of a judge outright rejecting your entire request on the basis that it is overly broad and burdensome.
3. Come to the hearing prepared to negotiate.
If you have filed an extra-large discovery motion with me, expect that I will first send you into the jury room with opposing counsel before we hold any hearing. I find it is often helpful for counsel to sit down and discuss the issues. Sometimes attorneys tell me they have resolved the entire motion, and other times they tell me they have resolved at least a portion of it.
4. Suggest an informal discussion with the judge.
In Multnomah County, cases are assigned to individual judges after a motion is filed. If you have been assigned to a judge for motions, consider asking opposing counsel if he/she would agree to a quick informal meeting with the judge to resolve the issue. You might be able to resolve the matter early on without causing your client to incur fees.
5. Think twice about requesting fees.
Speaking of fees, arguably what judges dislike more than discovery motions are motions for attorney fees filed in conjunction with discovery motions. Consider the odds of getting attorney fees before you go to the added time and expense of filing such a motion.