The Impact of Informal Discovery Conferences

In the realm of litigation, the discovery process, a formal information exchange supervised by the courts, constitutes a fundamental aspect of legal proceedings. It serves as a mechanism for parties to reveal trial evidence to the opposing side while allowing for adequate preparation of counter-arguments. However, this process is fraught with challenges. Both sides have incentives to withhold valuable information and request data of limited relevance, leading to a complicated balance between information exchange and its associated costs. When disputes arise, parties may file motions to compel, urging the court to force disclosure. The widespread use of such motions has led to concerns within the judicial system; judges have expressed frustration over excessive reliance on these legal maneuvers. To address this issue, courts have explored various case management techniques, such as informal discovery conferences (IDCs), aiming to streamline the discovery process and reduce associated costs.

Although such case management techniques as IDCs are widely used in both the Los Angeles (LA) Courts and other jurisdictions across the country, questions persist regarding their effectiveness. The challenge for researchers lies in determining whether these conferences genuinely mitigate discovery-related conflicts. Prior research, including several studies conducted by the RAND Institute for Civil Justice (ICJ), have explored related policies, often concluding that the impact of such case management techniques as IDCs depends heavily on individual judges' management styles as much as a specific intervention.

This brief describes a study in which researchers from the ICJ and the University of California, Los Angeles (UCLA)-RAND Center for Law and Public Policy attempted to isolate the impact of IDCs from such confounders as other unobserved case management techniques used by the judges who also use IDCs. Specifically, the researchers used a quasi-experimental design based on judges' propensity to use IDCs. By analyzing data from the Los Angeles Superior Court (LASC), where judges are randomly assigned to cases, the researchers were able to isolate the impact of IDCs on discovery motions from the case management styles of the judges who are most likely to use them.

Background

Discovery allows litigants to request vital information from opposing parties. These requests encompass interrogatories, depositions, document submissions, and physical examinations and are often fundamental to the litigation. One party's failure to respond to these requests may result in court-imposed sanctions. However, the challenge arises in the form of motion practice within discovery disputes, wherein parties seek court intervention rather than reaching informal resolutions. Judges have anecdotally reported that such motions significantly burden the court and litigants. The study described in this brief addressed whether case management techniques, specifically IDCs, mitigate the frequency and hence costs of discovery motions.

Los Angeles Superior Court

LASC, the largest unified court system in the United States, handled over 150,000 civil cases in 2019 alone. Focusing specifically on civil cases involving disputes exceeding $25,000, a subset accounting for approximately 50,000 cases annually in LA County, researchers drew data from the Stanley Mosk Courthouse, the largest courthouse within LASC.

To gauge the impact of IDCs on motion practice, researchers classified motions into distinct categories, including order motions, motions to quash, protective order motions, and motions to compel. The examination extended beyond mere motion counts, examining such indicators as motion page lengths, hearings on discovery matters, and judge rulings. Sample selection was challenging; despite efforts to balance observable factors, the non-random nature of IDC usage suggests potential systematic differences in unobserved factors between cases with and without IDCs.

IDC Use in the LA Courts

IDCs involve informal consultations between judges and opposing counsel before the filing of formal discovery motions. During an IDC, parties in a dispute alert the judge to their disagreement, and the judge arranges a telephone or in-person conference. In this setting, the judge provides a non-binding perspective on resolving the dispute, occasionally requesting further briefs on central legal or factual issues. Despite their potential benefits, IDCs face varied acceptance among general jurisdiction judges; some embrace the technique and others hesitate because of concerns about informality or calendar disruptions.

See paragraph below for description of figure.

NOTES: Circle size represents the number of cases a judge is assigned in the sample. All judges with fewer than 100 cases were dropped from the analysis.

Figure 1 shows the correlation between the percentage of a judge's cases in the sample that use an IDC and the percentage of the judge's cases with discovery motions. The figure shows a negative correlation between IDC use and the proportion of a judge's cases that have discovery motions. The figure also shows a wide variation in IDC use. For example, the judge with the random identification number of 151 used IDCs in almost 80 percent of their cases, while almost a third of the sample of judges never used IDCs. The authors also provide the linear best-fit line, excluding outlier judge 151, which suggests that increased IDC use is associated with fewer discovery motions. What is unclear, however, is whether judges using IDCs are in some way systematically different from judges who do not or whether IDCs are causing the negative correlation.

LASC cases are assigned to judges through a random selection process. However, mere random assignment is not sufficient to control for the potential endogeneity of IDCs. In empirical legal studies, endogeneity occurs when the independent variable—in this case, the presence of an IDC—is potentially correlated with other unobserved factors that might also affect the likelihood of a discovery dispute. Specifically, it seems likely that judges who actively participate in case management are also likely inclined to employ other case management techniques. In other words, judges using IDCs might be more predisposed to employing other case management strategies that effectively curtail discovery motions. What is needed is random assignment and the variation in the likelihood a judge uses an IDC—a so-called intent to treat instrument in empirical parlance.

IDC	Estimated percentage of reduction in probability
Ignoring endogeneity	-55%
Random assignment as experiment	-70%
Random assignment as experiment without certain case types	-70%
Random assignment as experiment with other controls	-70%
Experiment is average IDC use	-70%

SOURCE: Features information from LASC, Case Access, database, undated.

Figure 2 presents the regression results examining the impact of IDCs on discovery motions. (The first bar of Figure 2, “ignoring endogeneity,” is the estimated impact of IDC use when the researchers do not control for endogeneity. The second bar, “random assignment as experiment,” is the estimated impact of IDCs when the researchers used random assignment and the differing propensities of judges to use IDCs to control for endogeneity. The remaining three columns provide alternative methods of controlling for endogeneity. The key takeaway from the different approaches is similar.) The researchers employed a linear probability model and various strategies to control for the potential endogeneity of IDC use, all of which involve different methods of exploiting the random assignment of judges to cases. The results indicate a substantial correlation between IDCs and a reduction in the likelihood of any discovery motions by approximately 61–72 percent.

This reduction remains consistent across diverse IV methods, underscoring the robustness of the findings. To put this in context, about 85 percent of the sample have at least one discovery motion. The use of an IDC would reduce the likelihood of any discovery motion to 13–24 percent.

Further exploration into specific motion types reveals consistent negative effects of IDCs on motions to compel, ranging from 51 percent to 63 percent (see Figure 3).

IDC	Reduction in likelihood of any discovery motion by plaintiff	Reduction in likelihood of any discovery motion by plaintiff
Ignoring endogeneity	-35%	-70 %
Random assignment as experiment	-70%	-80%
Random assignment as experiment without certain case types	-60%	-85%
Random assignment as experiment with other controls	-50%	-85%
Experiment is average IDC use	-55%	-77 %

SOURCE: Features information from LASC, undated.

Additionally, the ICJ and UCLA-RAND Center for Law and Public Policy researchers found that IDCs have the largest impact on motions to compel. Motions to compel are present in almost 75 percent of cases in the sample. This suggests that an IDC reduces the probability of a motion to compel to 16 percent. Given that motions to compel are usually the first motions filed in a discovery dispute, this suggests a reduction in both motion practice and the scope of discovery disputes. The impact on other motion types is similar, although these motions are much less common in the data (see Figure 4).

The study also assessed case duration, indicating a modest increase of 34 days in cases with IDCs, but the impact is not significant when the researchers control for endogeneity (see Figure 5).

Intriguingly, IDCs appear to influence motion length, leading to shorter discovery motions by 18–26 percent, reflecting a potential modification in parties' filings after an IDC. Robustness checks affirm the results, highlighting the consistent impact of IDCs on reducing discovery motions across various scenarios and judge-specific contexts (see Figure 6).

Estimated percentage reduction in probability

IDC	Any motion to compel	Any motion to quash	Any motion to order	Any motion for protective orders
Ignoring endogeneity	-70%	8%	-75%	-15%
Random assignment as experiment	-75%	-35%	-145%	-60%
Random assignment as experiment without certain case types	-80%	-15%	-110%	0%
Random assignment as experiment with other controls	-82%	-10%	-95%	-30%
Experiment is average IDC use	-75%	-30%	-50%	5%

SOURCE: Features information from LASC, undated.

IDC	Estimated percentage reduction in case duration in days
Ignoring endogeneity	35%
Random assignment as experiment	-15%
Random assignment as experiment without certain case types	19%
Random assignment as experiment with other controls	2%
Experiment is average IDC use	65%

SOURCE: Features information from LASC, undated.

IDC	Estimated percentage reduction in average motion length
Ignoring endogeneity	15%
Random assignment as experiment	-16%
Random assignment as experiment without certain case types	-17%
Random assignment as experiment with other controls	-30%
Experiment is average IDC use	-25%

SOURCE: Features information from LASC, undated.

Conclusion

In the realm of litigation, the escalating costs associated with discovery motions have spurred considerable debate among scholars. Amid this discourse, this study delved into the efficacy of IDCs as a potential remedy. Historically, judicial intervention to curtail motion practice in discovery disputes has been met with skepticism, primarily because of challenges in disentangling the impact of such specific case management techniques as IDCs from the judge's unique approach. This research controls for this endogeneity by treating IDCs as a quasi-experiment based on judge assignment (a leniency design instrumental variable regression). The findings reveal a substantial reduction of 64 percent in the likelihood of discovery motions when IDCs are employed, suggesting their potential to alleviate litigation costs in terms of attorney and judge time.

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Topics

• Court Congestion and Delay
• Legal Case and Court Management
• Legal Fees
• Pre-Trial Discovery