Using Baseball Arbitration Would Cut Costs in Discovery Disputes

Courts and commentators for years have decried the rising cost of civil discovery. Those costs arise in substantial part from document discovery and related disputes.

As a former litigator and current commercial litigation funder at GLS Capital, I have seen how overspending on discovery disputes can strain case budgets and lead to disproportionate legal spend relative to case value. To reduce those costs, parties and courts should consider a changeup: resolving document discovery disputes through “baseball arbitration.”

“Baseball Arbitration” Defined

In baseball arbitration — named due to its use in resolving salary disputes in professional baseball — each party submits a proposed settlement amount and, after a hearing, the arbitrator selects one of the proposed settlements as the final award. The arbitrator must select one of the parties’ proposals and can’t choose a middle ground.

This procedure encourages the parties to behave reasonably rather than swinging for the fences. As courts have recognized, “[i]n baseball arbitration … the parties … have every incentive to make a reasonable proposal to the arbitrator because the arbitrator will choose the more reasonable offer.”

Document Discovery Procedure

Under the Federal Rules of Civil Procedure, either party may propound on its opponent requests to produce documents. The opponent must respond within 30 days, specifying which responsive documents it will produce.

If the propounding party is dissatisfied with the response, it must confer or attempt to confer with its opponent to seek to resolve the disagreement without court intervention (known as the “meet-and-confer” process). Failing compromise, the propounding party may then move the court to compel compliance with its request.

This process is the source of significant cost and expense and often drags into extra innings. It can involve multiple rounds of conference calls, emails, deficiency letters, amended requests or responses, motion practice, and discovery hearings. Legal fees mount each step of the way.

Applying Baseball Arbitration

Using baseball arbitration to adjudicate document discovery disputes could streamline resolution and reduce costs. It would work as follows:

Party A serves a document request to Party B, and Party B responds, specifying which responsive documents it will produce.After conferring with Party B, Party A may move to compel — but it must seek compliance with its request as last put in writing to Party B, without modification.The court resolves disputes by selecting one party’s position, as stated in that party’s most recent written request or response, as applicable.Benefits

The use of baseball arbitration could increase efficiency at each step of the document discovery process.

Improved requests and responses. Baseball arbitration will motivate parties to tailor initial discovery requests and responses more reasonably. Parties routinely serve overly broad document requests or boilerplate responses, often to courts’ dismay.

This practice aligns with the incentives the current scheme creates. Because courts frequently split the difference when resolving discovery disputes rather than siding entirely with one party, each side has good reason to be aggressive from the outset.

With baseball arbitration, however, those incentives dissipate. Propounding parties will avoid sweeping initial requests, knowing that courts will be unlikely to enforce them. Similarly, responding parties will forego improperly narrow responses, as such tactics risk compelled disclosure of everything their opponent requested.

More productive meet-and-confers. Baseball arbitration also will improve productivity at meet-and-confers. Because parties will start from more reasonable negotiating positions, there will likely be fewer disagreements to address and shorter divides to bridge.

Further, if parties can no longer count on courts to fashion compromises on their behalf, they will work harder to reach agreement, rather than simply paying lip service to the meet-and-confer requirement, as attorneys sometimes do.

Reduced motion practice. With baseball arbitration, parties likely will file fewer motions to compel. Courts have recognized baseball arbitration’s tendency to foster settlement in other contexts.

The same result should follow in the discovery context, as parties often may seek to avoid the all-or-nothing risk of a baseball arbitration discovery hearing. The time and expense saved from such reduced motion practice for both litigants and courts could be substantial.

Potential Criticisms

Critics may view the use of baseball arbitration as too much of a curveball. They may argue it unduly restrains both judicial discretion and the scope of discovery. But such concerns are baseless.

First, some may argue that courts should retain discretion to call balls and strikes in discovery as part of case management, including by determining the proper scope of document production. But parties, not courts, are often best positioned to understand what information is relevant and proportionate to a case.

Parties may know better than courts — which sometimes manage hundreds of cases simultaneously — what facts matter for their particular case, where key documents are located, and what burdens accompany production. Accordingly, parties are best equipped to ascertain the appropriate scope of discovery in their cases, provided that they have incentives to behave reasonably.

Critics may also argue that baseball arbitration will unduly curtail the scope of discovery and undermine its truth-seeking mission by discouraging liberal document requests. That is unlikely.

The broad scope of permissible discovery would remain unchanged, and parties resisting discovery would continue to bear the burden of showing why a request is improper. The use of baseball arbitration will simply force parties to tailor their requests appropriately and cooperate with each other — the same objectives that the Federal Rules and courts have sought to achieve.

Key Takeaways

In many cases, baseball arbitration can pinch-hit for traditional discovery dispute resolution. It creates incentives for litigants to act reasonably and cooperatively in discovery and thereby reduces cost, burden, and expense on parties and courts.

Parties should therefore consider incorporating this procedure into their discovery plans. And courts and arbitrators should encourage — or, where appropriate, require — parties to use this practical and efficient method for dispute resolution in document discovery.

This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Mick Biehl is a principal at legal private investment firm GLS Capital.

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