Rock, Paper, Scissors Match to Resolve Discovery Dispute

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While trial by combat is unfortunately no longer a part (officially) of our legal system, a form of it was revived on June 6 by the Honorable Greg Presnell of the Middle District of Florida. The parties in Avista Management v. Wausau Underwriters apparently could not agree on where to hold a 30(b)(6) deposition, which the court in frustration described as “the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts.” The lawyers involved have offices four floors apart in the same building, but still could not agree. Plaintiff’s counsel filed a motion asking the court to make the decision. It was denied.

Instead, counsel for the parties will be meeting at 4 PM on Friday, June 30, at a neutral site, each being permitted one attendant, to engage in one (1) game of “rock, paper, scissors.” The winner of the match is entitled to select the location at which the deposition will be held.

I for one would vote that this option be codified in the Federal Rules of Civil Procedure, although I think that ordering it falls well within the inherent power of any court to control its docket and so forth.

The most interesting part of this to me is that the court provides that “[i]f either party disputes the outcome of this engagement, an appeal may be filed” that will be heard by Judge Presnell on July 7. I think we are in uncharted territory here as to the rules and/or standard of review that would apply to the appeal of a rock-paper-scissors match. (Maybe you would just do best two out of three?) In an effort to help resolve this, I would refer the parties and the court to the World Rock Paper Scissors Society, the organization charged with setting standards for international match play.

I would also be available to help handle the appeal (if any).