Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, February 8, 2011

Fishing License

Lawyers who don't want to produce information or documents that the other side has requested often accuse them of engaging in a "fishing expedition."

Indeed, "fishing expedition" is the cliche of choice under these circumstances. Over the years, countless litigants have invoked the phrase and countless judges have adopted it as a metaphor to describe the problem of discovery run amok.

The phrase should be sent off to enjoy its long overdue retirement .... and perhaps enjoy a little angling.

This is so for at least two reasons.

First, the metaphor is inapt. Fishing does not involve an indiscriminate effort to see if there is anything anywhere in the lake. To the contrary, it requires a studied understanding of what one wants to catch, where one might find it, and how one might get it on the line.

Second, the metaphor reflects a misunderstaning of the law. In fact, the modern discovery rules give litigants substantial latitude to test the waters with less than perfect precision.

But don't take my word for it. The United States Supreme Court said as much in Hickman v. Taylor (1947), where it observed this about discovery under the federal rules of civil procedure: "No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case."

That was more than sixty years ago. The news does not appear to have reached many lawyers and judges.

Perhaps they were off fishing when the word came down.

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