PEER REVIEW
Paul Grimm CHIEF MAGISTRATE JUDGE U.S. District Court (Maryland)
answer to e-discovery conflicts in litigation may lie with the next generation of lawyers, predicts Paul Grimm, chief magistrate judge of the U.S. District Court (Maryland). Baby Boomers seem indelibly committed to the “notion that discovery is a confrontational process,” says Grimm, who preaches that justice can better prevail when opponents talk first — to determine the facts of the dispute and set discovery parameters — before firing off motions, demands, and objections. Grimm, 59, served with the Army’s Judge Advocate General Corps., and worked both in government and private practice before joining the federal bench in 1997. He has seen firsthand how the existing legal system has built-in incentives for protracted battles. “The old economic model [is] the more I fight, the more hours I spend, the more money I make.” Even though the 2006 revisions to the Federal Rules of Civil Procedure mandate conversations, cooperation has been more aspiration than reality, as parties struggle to conduct e-discovery without breaking their bank accounts. Grimm’s opinion in Glenda Mancia, et. al. v. Mayflower Textile Services, et al. 253 F.R.D. 354 (D. Md. 2008), was written one week after the unveiling of the Sedona Confer-
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ence Cooperation Proclamation, and he took the opportunity to educate lawyers “that a confrontational response is not what the rules require or the courts expect.” (In 2010’s Victor Stanley II, his 89-page opinion included a 12-page chart analyzing spoliation sanctions across the country. See page 60). Cooperation “is not the notion that we are all going to hold hands and sing Kumbaya,” Grimm says. Rather, it is to “facilitate resolution instead of dragging it out.”
Grimm worries that the escalating costs of e-discovery threaten litigants’ root trust of the courts. “If we are not able as a profession to conquer that, then what is lost in the process is that very fundamental American belief that if you don’t like something, you can file a lawsuit and get redress, get it heard.” Americans, he says, assume that our courts will be just. “But if it costs $300,000 to resolve a $50,000 dispute, that’s a problem.” — Monica Bay
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