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Gone fishing

Last Friday I attended a motion in which the primary issue was whether my client’s discovery request was a “fishing expedition.”  The term “fishing expedition” is commonly bandied about by attorneys.  It typically arises in three legal contexts: when police stop and frisk someone; when attorneys cross-examine a witness; or when one party seeks discovery–typically documents–from the other party to a lawsuit.  The image it conjures–of someone casting a wide net in the hope of finding a few tasty morsels but having no fixed idea of what one is actually seeking–is vivid, so it’s not surprising that the law has appropriated it to describe certain classes of verboten behavior.  But when the hearing was over I realized I have never seen a legal definition explaining how to distinguish what is and what is not a “fishing expedition.”  Out of sheer intellectual curiosity, I decided to do the research.

Reported South Carolina appellate case law lists thirty-two decisions referencing the term.  All thirty-two decisions take the meaning of “fishing expedition” to be self-evident and none undergo an analysis of how one differentiates a fishing expedition from a legitimate search, a proper cross-examination question, or a legitimate discovery request.  Ditto for the forty United States Supreme Court opinions referencing the term.  The first reported American case I could find referencing the term in its legal context (as opposed to an actual fishing trip) was Barry v. Galvin, 37 How. Pr. 310, 1867 WL 5890 (N.Y.Sup.Gen.Term 1867).  Again, its meaning is assumed rather than defined.

So, apparently, for 143 years we lawyers have argued whether a police search, a cross-examination question, or a discovery request is a “fishing expedition” without first deciding what we mean by the term.  This seems most unlawyerly.  Like Supreme Court Justice Potter Stewart’s definition of pornography in Jacobellis v. Ohio, 378 U.S. 184 (1964), “I know it when I see it,” we appear to have left the definition of “fishing expedition” to the views of each individual judge and expect them to know it when they see it.

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