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Beginning Discovery

Frank Hammond July 4, 2023

This post assumes a typical large commercial or government lawsuit in federal court where the complaint or some version of it has survived motion practice. The next step in the litigation is discovery. Here, I will explore what discovery is and what it means to the client.

Lawyers and clients need to avoid letting discovery become a purpose unto itself. Discovery should be driven by the search for evidence that will support that side’s story of the case. Keeping this in mind, discovery can be a productive and limited process.

Disclosure is Comprehensive

Before the Federal Rules of Civil Procedure (FRCP) were adopted in the late 1930s litigation was largely trial by ambush. No rule of procedure required the other side to turn over information it might solely possess that would be relevant to the case. That has now changed with the advent of the FRCP. Now, disclosure of all information that might be relevant or lead to relevant evidence is required. Indeed, the parties must make disclosure of certain important information, including how damages were calculated, without any formal discovery requests to one another. See FRCP 26(a).

As discovery moves forward be prepared to make broad disclosures of information. This is true of information that is embarrassing or otherwise painful to make public. In responding to discovery requests, always be truthful and provide enough information that your answers are not misleading. With regard to confidential business information and such a protective order can be sought to prevent disclosure of the information to non-parties, but you may have to disclose it to the other side unless it is privileged.

FRCP 26 provides means for the court to control discovery in an attempt to keep it within reasonable bounds. The parties are, for example, required to propose a discovery plan to the court. Clients should expect lawyers to work through what discovery is likely to look like and how the burden on the client can be reduced. Lawyers should also identify areas where there may be some vaguely relevant discovery material, but the cost of producing that material would be prohibitive. At that point the court’s help may be needed to control discovery. Lawyers also need to negotiate how inadvertently produced privileged material will be handled as the case progresses. Any protective order agreed to by the parties as part of the discovery plan should have a claw back provision so that inadvertently produced privileged material can be recovered. Finally, the plan should take into account the discovery of electronic data and how it will be handled. To learn more about e-discovery, check out this article on the subject. Of course, clients should work with their lawyers to identify all likely discovery sources and plan how they should be produced in discovery.

Keep in mind that discovery extends to all forms of electronic information, including metadata. This means emails and texts are subject to discovery. It means that all electronic information on any sort of device (smart phone, pad, and home computers are a few). As a party to the litigation, it is your responsibility to protect all of this information from destruction, and possibly to make it available in discovery. This is often referred to as the “litigation hold,” and comes into force as soon as you know litigation may occur.

When responding to discovery requests, especially document requests, always avoid giving in to the temptation to hide or destroy embarrassing or other potentially harmful information. There is nothing worse than the missing email: the email you should have produced but did not. Lawyers are trained how to explain embarrassing or harmful documents, but judges will impose harsh penalties if a document is destroyed or hidden. If you find yourself in litigation, brace yourself for everything coming out, and hope that your lawyers can find ways to make it less onerous than that.

Tools of Discovery

The FRCP provide for a variety of discovery tools. Rather than list each one, however, I am going to review what may be the most expensive: document production. I’ll pick up other tools of discovery, like depositions, in subsequent posts.

Generally, the first step in the discovery process is document production. The goal is to locate among the other side’s documents evidence that will advance your side’s story of the litigation.

Document discovery starts by serving a request for the production of documents. Usually beginning associate attorneys draft these requests, and beginners almost always think the purpose of the request is to get absolutely every document that might be relevant to the case. This results in a lot of disputes over the scope of production and large, unmanageable productions. The “everything including the kitchen sink” approach is therefore the wrong way to structure requests for documents.

The document request, like the rest of discovery, should be focused on locating information that will advance your side’s story of the case. Careful thought should be given to each request so that it is narrowly written to advance your case. Narrow, carefully thought out requests will attract fewer frivolous objections and be upheld if challenged. Broad everything but the kitchen sink requests will do just the opposite.

Here are two examples. Assume that company a is suing company b for breach of contract. Also assume that the critical communication is between Mr. Smith and Mr. Jones:

Bad Request for Production:

Produce any and all documents concerning or relating to any communications between company a and company b concerning or relating to any agreement between company a and company b.

Good Request for Production:

Documents containing or discussing any communication between Mr. Smith and Mr. Jones about the relationship between company a and company b.

Both requests are likely to pick up some objections, but the Bad Request will be harder to defend than the more specific Good Request. In addition, with the Good Request the party making the request is getting to the point of the case and production in response to the request will be smaller and more to the point.

In most cases, requests for production will cause the other side to issue a response and not necessarily any production documents. The response will contain the other side’s objections to the document requests. Generally, some form of negotiation will occur to resolve the objections, or the objections will be resolved by the court. In federal court this can be done as part of the work on the discovery plan. Then, if not before, documents will be produced by the party on whom the request was served. I plan to write a subsequent post on scaling and conducting production, including was has come to be referred to as “e-discovery,” so I will not go further into the process here.

This post makes two main points. First, plan on comprehensive production, and do not destroy or hide any documents. If a bad document exists let your lawyer know so he or she can deal with it. Second, all discovery, including document discovery, should be driven by building the story of your case. Getting every document on a broad subject is not the goal. Getting documents necessary to support you story is.

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