Attorneys, Document Discovery, and Discipline

Despite the growing use of sanctions and recent amendments to the Federal Rules of Civil Procedure aimed at improving discovery practice, many lawyers continue to play fast and loose with the rules of discovery governing (paper and electronic) documents. Nonetheless, most lawyers never face discipline for their discovery misconduct. This article argues that federal courts could make more effective use of attorney discipline systems to improve document discovery in civil cases. What will be effective depends on why discovery misconduct occurs. There are multiple reasons why lawyers may engage in such misconduct – from ignorance of the rules to intentional, calculated violation of the law. The best explanation for most discovery misconduct, though, is that lawyers do not think they are doing anything wrong. Behavioral legal ethics explains how cognitive bias, situational pressures, and other factors influence attorney behavior in discovery. This article makes the case that federal judges could counteract these factors – and perhaps even harness the power of behavioral science – by consistently educating attorneys about discovery expectations and consistently imposing disciplinary consequences for discovery misconduct. These changes could fundamentally change the way lawyers conduct discovery. While some may argue that consistent imposition of sanctions could have the same impact, the article presents the reasons attorney discipline is superior to sanctions alone. The article opens with descriptions of common problem areas in document discovery in civil litigation in federal court. This discussion explains the governing procedural rules and other law and provides examples of how attorneys regularly violate their legal obligations in each area. This part of the article concludes by discussing the availability of sanctions and the rise in their use in recent years. With that foundation, the next part of the article explains the professional conduct rules pertinent to document discovery practice and the discipline systems that could be used to address misconduct. Thereafter, the article considers the dearth of document discovery-related disciplinary proceedings originating from federal court. A contributing factor to the lack of discipline appears to be the low number of disciplinary referrals. The article considers the reasons attorneys do not report the discovery misconduct of opposing counsel and the somewhat different reasons judges do not make discipline referrals. With this understanding of the lack of discipline and some of the reasons for it, the article argues for reform, explaining the appropriate cases for discipline referrals, how behavioral legal ethics research should influence judges to consistently turn to the discipline system, and the advantages of discipline over sanctions alone. The article closes with a discussion of three different settings in which discovery discipline reform could be achieved: at the judge-level, court-level, and nationally. This discussion considers specific ideas for implementing change in each setting and the reasons some of these avenues may be more effective than others.