GLS Capital Principal Mick Biehl examines a novel approach to reducing the cost and burden of document discovery disputes for Bloomberg Law.
Drawing on his experience as both a former litigator and a commercial litigation funder, GLS Principal Mick Biehl argues that the traditional discovery process can create incentives for parties to stake out aggressive positions, prolong negotiations, and ultimately increase litigation costs. As he writes, “I have seen how overspending on discovery disputes can strain case budgets and lead to disproportionate legal spend relative to case value.” His proposed solution is a changeup: applying the principles of “baseball arbitration” to document discovery disputes.
Under baseball arbitration, each side submits its position, and the decision-maker must select one or the other rather than fashioning a compromise. Applying that framework to discovery, Biehl argues, could change parties’ incentives throughout the process. “This procedure encourages the parties to behave reasonably rather than swinging for the fences,” he writes. By requiring parties to stand behind their most recent written requests and responses, the approach could encourage more appropriately tailored discovery demands, narrower areas of disagreement during meet-and-confers, and fewer motions to compel.
Biehl also addresses potential criticisms that the approach could constrain judicial discretion or unnecessarily limit discovery. Instead, he argues that the existing scope of permissible discovery would remain intact while creating stronger incentives for parties to cooperate and take reasonable positions from the outset.
Ultimately, Biehl concludes that “baseball arbitration can pinch-hit for traditional discovery dispute resolution.” By encouraging litigants to act more reasonably and cooperatively, the approach could reduce the cost, burden, and expense associated with document discovery for both parties and courts.
Read the full article on Bloomberg Law