Well now, take down your fishing pole
and meet me at the fishing hole
We may not get a bite all day
but don’t you rush away
What a great place to rest your bones
and mighty fine for skipping stones
You’ll feel fresh as a lemonade
a-setting in the shade
Not many people know the words to “Fishing Hole,” but almost everyone knows the tune, the whistled version of which opened every episode of The Andy Griffith Show, the classic TV comedy featuring a folksy country sheriff and his bumbling, excitable deputy.
Sheriff Taylor didn't have much need for warrants in Mayberry, but he surely knew that the Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and prohibits the issuing of warrants except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In other words, you have to know what you're looking for and where you expect to find it. Plus, you have to spell it out and convince a judge that you're on to something. You can't just go fishing among people's personal effects, hoping you'll get a bite.
Discovery works much the same way, or should.
George Christian of the Texas Civil Justice League points out that some shifty trial lawyers misuse discovery, requesting electronically stored information in formats not used by the defendant, thereby driving up the cost of compliance and lowering the resistance to settlement.
State Farm Lloyds has petitioned the Texas Supreme Court to overturn a district judge’s decision to impose a protocol for the production of electronically stored information in a hailstorm lawsuit filed by the Mostyn Law Firm.
The high court should grant that petition and make lawyers like Mostyn stop using discovery as a fishing license or a cudgel.