9 Hamline L. Rev. 63 (1986)
Discovery Abuse: Appointing Special Masters

handle is hein.journals/hamlrv9 and id is 73 raw text is: DISCOVERY ABUSE: APPOINTING SPECIAL MASTERS
Miles W. Lord
Very high on the list of problems that impede justice in complex
litigation is the abuse of discovery. Judges, bar associations, individual
attorneys, philosophers, and writers of all kinds proclaim the deplorable
and insolvable nature of the discovery dilemma. Chief Justice Warren
Burger, who has taken a deep and personal interest in abuse of discov-
ery, has written a personal letter to every federal judge in the United
States and has made a study into the number of times and the circum-
stances under which federal courts have imposed the discovery sanc-
tions mandated by Rule 37.' While many are interested in solving the
discovery problems, the dilemma persists only because we do not wish
to face the true solution. The spotlight should focus on the reason for
the conduct of the attorneys called upon to produce information and
their motivation for discovery delays and problems.
Our approach to solving the discovery problem thus far has been
dead wrong. Criticism has focused upon the practices of attorneys re-
questing production of documents, blaming them for clogging the sys-
tem with endless demands. We should examine instead the conduct of
attorneys who are called upon to produce documents. Our examination
might focus, for instance, upon how conflicts of interest may impede
the discovery process. In most settings, our system demands the utmost
fidelity of attorneys when handling the matters of a client. Conflicts of
interest are not tolerated in any degree. The rules of ethics prohibit an
attorney from becoming involved in a case if the exercise of the attor-
ney's judgment reasonably may be affected by the attorney's financial
or personal interests.2 In almost every circumstance an attorney must
give unswerving and total loyalty to his client. If necessary, the attor-
1. FED. R. Civ. P. 37 (sanctions for failure to make or cooperate in discovery).
2. MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 5 (1981) (A Lawyer Should
Exercise Independent Professional Judgment on Behalf of a Client); MODEL CODE OF PROFES-
SIONAL RESPONSIBILITY EC 5-1 (1981) (Neither [an attorney's] personal interests, the interests
of other clients, nor the desires of third persons should be permitted to dilute [the attorney's]
loyalty to his [or her] client.); MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 5-101(A)
(1981) (Refusing Employment When the Interests of the Lawyer May Impair His [of Her]
Independent Professional Judgment); MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7(b)
(1983) (regarding representation of clients when representation may be materially limited by the
lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest).

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