Meanwhile, plaintiffs were great at throwing out accusations of a worldwide conspiracy emanating from some fairly simple products liability or slip-and-fall case, which always boggled my mind. Most of my clients were nowhere near as organized as that… most “missing documents” were never missing to begin with… Plaintiffs would infuriatingly accuse defendants of this, and naturally, we’d be hard pressed to prove a negative. But the judge would prick up his ears and we’d look bad. Spoliation was a nice little weapon… since it was actually an independent cause of action.

In the end, it was always the weak cases that involved plaintiff brow-beating over discovery.

The long and short of it is that the current system encourages frivolous defense objections and compels plaintiffs to discovery the bejesus out of cases, because that’s the only way to get any information at all.

I’d be happy to see a trade-off of limiting plaintiff’s discovery alongside creating and enforcing a duty among defendants to reveal discoverable evidence. As it stands, a lot of firms make a lot of money doing little but filing bogus discovery objections and over-litigating every single issue, overwhelming courts and making discovery as much as crapshoot for plaintiffs as defendants. For every excessive spoliation order you see, there are dozens of relevant discovery requests denied by courts and thousands of blatantly destroyed or concealed documents.