It’s no secret that civil discovery breeds attorney misconduct. The incentives are all wrong. Lawyers have an incentive to advance their clients’ interests. Fighting tooth and nail on behalf of a client helps to justify large fees and repeat business, and cultural norms support this kind of practice. In civil discovery, the perils of zealous advocacy show themselves in all the tropes of the bad litigator—fighting every document request, stalling to slow down the delivery of documents that will eventually be produced, or producing a mountain of documents when only a handful are relevant. The doctrines of civil discovery are fact specific and invite motivated reasoning. The decisions about what to produce take place outside of the eye of the judge.

For all its incentive problems, the world of civil discovery looks a bit like the world of business. Corporations are designed to make a profit, and corporate agents—officers and directors—have fiduciary obligations to maximize returns for shareholders. Those agents are often compensated in stock, furthering their incentives to focus their energy on share price, often to the detriment of stakeholders like employees or the public. Lawbreaking can be profitable, while legal compliance can be expensive. Many laws are unclear. Many laws are underenforced. Against this backdrop, there is plenty to entice corporate agents to bend or even break the law.

In today’s corporate landscape, compliance professionals play an important role in countering incentives for misconduct. The field of compliance—both as an academic discipline and an industry—has grown rapidly, especially in the years since corporate scandals at Enron and WorldCom placed renewed attention on corporate misbehavior. The study of compliance offers lessons about why corporations break the law and how one might begin to get them to stop. In a new article, we seek to put those lessons to use to solve a different problem—that of civil discovery.

The first lesson we consider is culture. Compliance experts frequently cite culture as critical to successful legal compliance. The culture of a firm often dictates whether employees regularly follow the law, or whether legal obligations are disregarded in favor of other priorities. Tone from the top is important, as are cultural understandings about the legitimacy of the law. Compensation, promotion, and other professional rewards send signals about what an organization values. If a corporation rewards financial performance without any incentives for compliance, that communicates to employees what they should prioritize.

Another lesson from compliance literature is the importance of salience. Often the consequences of misconduct are remote. If being punished feels like being struck by lightning—random and rare—it fails to be salient in everyday decision-making and to have a deterrent effect. Where the risk of government enforcement is minimal in some areas of law, the compliance function is intended to work as a privatized complement to external regulation by overseeing and auditing within the firm.

Understanding culture and salience is critical to successful compliance. If we think of discovery as a compliance problem, we can see how we might map compliance solutions onto the incentive problem of civil discovery. First, we have to change the culture. Zealous advocacy’s adversarial norms have an important place in some contexts—the representation of individual clients, especially in cases of criminal defense, for example. But in the commercial context, some of the most persuasive justifications for this model of defense fail to apply. Instead, commercial litigators, as a profession, ought to reemphasize their duties, as compelled by the Model Rules of Professional Conduct, to act civilly and with candor to the court. Senior members of the bar as well as those on the bench have a responsibility to create a tone from the top that places value on cooperative and civil conduct in discovery and devalues the sharp elbows that plague discovery practice.

To drive cultural change, the importance of more ethical norms must be salient to commercial litigators. Courts have a role to play here. First there is a need to clarify—as much as possible—the rules of the road. The clearer the rules of discovery are, the more difficult it is to engage in the kind of motivated reasoning that lends itself to discovery abuse. Next, when attorneys do break the rules, there should be consequences. Rare, unpredictable sanctions do not have the deterrent effect necessary to make them salient. Instead, judges should think about imposing milder but more frequent sanctions. In Delaware, courts have taken a number of steps to make cultural messages about discovery compliance salient. Both the Supreme Court and Court of Chancery have issued opinions laying out clearer rules concerning standard points of discovery contention—privilege logs, deadlines, and objections. Delaware courts have been willing to name and shame lawyers and firms that engage in misconduct and to make clear when behavior is out of bounds. And they have explored innovative strategies for managing contentious discovery, such as the use of discovery facilitators, all to make salient the need for a more ethical professional culture.

Thirty-five years ago, Frank Easterbrook described civil discovery as “war.” It seems fair to say little has changed since. Civil discovery in commercial cases needs improvement. A compliance-based mindset might offer a new approach—one that emphasizes both culture and salience to realign the incentives in commercial litigation.

This post comes to us from Vice Chancellor J. Travis Laster of the Delaware Court of Chancery and Professor Elise Bernlohr Maizel at Michigan State University College of Law. It is based on their recent article, “Discovery as a Compliance Problem,” available here.