How to prepare for discovery *

​

Written "discovery" is the process by which parties in litigation exchange questions and request documents.

​

Unlike deposition testimony taken in the discovery process, written discovery is a paper chase in which many trees perish.  But it is crucial.

​

• When your lawyer sends you a set of written discovery requests received from the opposing party, the requests may come in three forms: (1) “interrogatories,” which is legalese for written questions; (2) requests for production of documents; and (3) requests for admissions.

• Requests for admissions are just that: statements of fact that the opposing party wants you to admit or deny.  For example: “Admit that the road was dry when the accident occurred.”  Answer: Admitted.

• Interrogatories are typically detailed questions that explore the particular facts of the case, your knowledge of them, and potentially the reasons underlying your legal positions. 

• It’s typical for attorneys to ask you to identify anyone who may have knowledge about the case and what you believe they know, for example.  It’s also typical that attorneys ask for facts supporting specific allegations in a plaintiff’s lawsuit or facts that permitted a defendant to deny certain allegations. 

• Your attorney will object to overly broad or overly burdensome and irrelevant questions, but generally be prepared to answer questions that pertain to the case.  Our rules of discovery allow for very broad inquiries, so be prepared to answer questions that you may not think are very pertinent.

• Requests for Production of Documents really get to the heart of most cases, especially the more complex ones.  These tend to be demands that you “produce,” or turn over, various documents intended to result in the production of every relevant tangible piece of evidence in your possession or control. 

• Requests for Production of Documents prompt the most battles between lawyers because they can be quite broad and burdensome if not tailored to the specific needs of the case.

 

Gathering documents responsive to discovery requests can take a great deal of time and resources.

​

Start early

​

• As soon as it appears you may be headed for litigation, you should take steps to preserve evidence.  In fact, you have a duty to do so, and failure could result in punishment by the court later.

• Stop all automated deletions of emails and text messages that could be relevant to the dispute, and don’t manually delete anything either.

• In consultation with your attorney, gather the documents and communications you know will be relevant so that they will be easily transferred to and assessed by your attorney.

• Electronic communications, such as emails and text messages, should be preserved in their “native” electronic format, such as .msg files or whatever the corresponding program uses. 

• Our rules require production of electronic documents if requested, and that is increasingly a demand in even relatively simple cases.

• If you create documents such as summaries and timelines that are not specifically intended for your attorney for use in anticipated litigation, they may be discoverable; so consult your attorney first.

• A benefit of addressing these document searches and procedures early is that one of the heaviest burdens on a party to litigation will be largely behind you.

 

It’s common for the lawyers to fight over the scope of discovery they should be required to answer.

​

Judges hate discovery disputes.

​

• Even a righteous demand that the other side should comply with discovery requests is up against that fact of legal life.

• The party that brings a motion to compel compliance is usually facing a judge who doesn’t like to spend time on squabbles between lawyers.

• Most judges will want to see the lawyers try hard to reach a compromise, which the rules actually require, but there are plenty of times that the fight needs to happen in front of a judge anyway.

• The best way to enhance the odds of voluntary or compelled compliance is to serve discovery requests that are well thought out, targeted, and indisputably relevant, making this an area where your attorney’s work behind the scenes matters a great deal.

 

These discovery battles are often won or lost before they’re fought.