Langham: Pertinence in Discovery

Tuesday, March 2, 2021 | 0

Discovery can be a tricky subject, even for experienced attorneys.

Judge David Langham

The conduct of discovery in Florida "court" proceedings is governed by various subject-matter-specific rules adopted by the Florida Supreme Court. The Office of Judges of Compensation Claims is not a "court," and the Supreme Court does not make rules for workers' compensation proceedings.

That can be confusing. There are periodic questions about why discovery works the way it does (or more often, why it does not work the way someone wants it to). A focus of Discovery in Workers' Compensation is why interrogatories are not allowed as a mode of discovery in those cases. The answer is reasonably simple to state: "Because the rules don't allow them."

The reason for this "Because I'm the mom and I said so" answer is likely deeper, but it is the answer one needs.

When discovery is instigated, the parameters are in Rule 60Q6.114, Rules of Procedure for Workers' Compensation Adjudications. This rule defines timing ("prior to or after invoking the jurisdiction of the judge," 60Q6.114(1)) and delineates the various available forms:

• Interactive testimony under oath (a "deposition" — Rule 60Q6.114(2)(a)).
• A party is asked to send documents or things to another party (a "request to produce" — Rule 60Q6.114(2)).
• A non-party is asked to send documents to a party (a "subpoena" — Rule 60Q6.114(2)).

Rule 60Q6.114 also includes authority for "responses and objections" regarding discovery (Rule 60Q6.114(4) as well as the authority of a judge to sort through both a party's effort to obtain discovery and any objections to discovery (Rule 60Q6.114(5)).

And, the Rules of Procedure for Workers' Compensation Adjudications incorporates the court rules in various specific instances: "as provided in the Florida Rules of Civil Procedure."

There are constraints on evidence that parties should consider. One is relevance. Relevance is important.

Relevance returned to mind recently when I ran across a motion to compel. The issue in that case regarded production of documents filed by one party. The opposing party failed (or declined) to file any response or objection to the motion. Thus, the judge was presented with one side of a story and whatever contest that one side conveyed.

In a motion hearing once, a party argued to me that the other side's "motion only tells their side of the story." That is what motions do; they tell one side. If the other party has a side, it is its obligation to file a response and tell it. 

I have seen many such instances in decades of litigation. Frequently, such a request for relief (essentially, a motion is a request by a party for some relief from the tribunal through the entry of an order) results in the granting of whatever is requested. There is a school of thought that if there were some good reason not to grant the relief, then the judge should hear from the opposing party in the case as to what that reason is. Absent such objection, an order is entered granting relief.

That did not occur in the present instance. In this case, the judge instead reviewed the request for production of documents for which the motion had been filed to compel compliance. The judge found the requests were not appropriate, noting, "It is unfortunate that both claimants and E/Cs (employer/carriers) use preprogrammed in computers requests to produce."

The judge reminded of the importance of pertinence, not relevance. The rules allow the discovery of evidence that is not necessarily relevant itself but which may reasonably lead to the discovery of admissible (relevant) evidence. But, as regards pertinence, the judge noted that standard ("lead to discoverable evidence").

The judge concluded, "These generic requests to produce, by both sides, lead to unnecessary litigation and judicial intervention, time-consuming and leading to the resolution of the important issues in the case."

The judge went on to describe the pending claims in the case, and he characterized them as "medical benefits only." He then described the request to produce as "extensive" and inclusive of items that "have absolutely no bearing on the (medical) issues being litigated." He concluded by denying the motion to compel, except as regarded the document requests notably related to the pending medical issues; that is, the pertinent requests.

There is perhaps an illustration here of repetition for repetition's sake. It is perhaps simpler in each case to send out the "form" requests than it is to sit down and think about the actual issues for a few minutes. In the 2007 "Transformers," the protagonist is asked, "Is it fear or courage that compels you?" And, in that context, one might similarly ask, is it efficiency or laziness that drives such discovery? Is the client benefitted because he/she/it is not charged for the request, since it is merely a rote printing of a form document that takes only seconds? Or, is the client charged as if legal work were thoughtfully performed?

Certainly, it might be more efficient to send the same request for production in every case. That is, more efficient for the party sending the discovery. But, correspondingly, that might be far less efficient for the party responding in that case.

In this, one might conclude that efficiency could be perceived as "zero-sum gain." Those are instances in which the amount one loses is always equal to the amount someone else gains. When one enjoys efficiency or convenience, it is a direct detriment to another. It may be easy for one side to merely print the same old exhaustive list of requested documents in each case, but that may create extensive and useless effort for the other party. 

The purpose of discovery is to enlighten the parties to litigation upon the pending issues and various elements of evidence relevant to, or pertinent to, those issues. When it devolves into the rote and unthinking propounding of extensive and irrelevant inquiries, followed by objections, motions, responses, orders and even hearings, it is neither efficient, effective or appropriate.

Is your discovery pertinent to the pending claims? Can you enunciate how your requests are "reasonably calculated to lead to the discovery of admissible evidence?" Or, are you or your staff just generating habitual form pleadings? 

Is there reason, logic, intellect involved, or merely rote habit? Are you practicing law or clicking "print?" Is rote habit and repetition the practice of professionals? Would the potential for some manner of sanction decrease the perceived unthinking routine and return the focus to pertinence and relevance? Should it require some sanction for lawyers to sit down and actually perform the tasks for which they are billing their clients?

Are you a professional or merely an automaton that unthinkingly follows a set routine or program acting, reacting and acting again without consideration, intellect and judgment If you are not a professional, is there a path back to that role?

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.