The Burdens of Modern Discovery
Every business that has dealt with litigation in the last 25 years has seen the massive increase in written discovery due to the widespread use of electronically stored information (ESI). Wading through all of those emails, text messages, and circulated drafts can take an army of document reviewers. Artificial Intelligence may soon achieve a level of sophistication to allow it to streamline document review significantly, identifying and summarizing key documents for counsel to review. It may also soon be able to prepare first drafts of responses to written discovery, like interrogatories and Requests for Admission (but ethical lawyers must review that work to ensure it is accurate and in the case of Requests for Admission, consistent with your strategy!). But even if AI starts reducing the burden associated with written discovery, you will still need experienced counsel who develop an actual strategy to approach discovery. And for anyone wondering, “let’s bury the other side in voluminous discovery demands” is not an actual strategy.
The Purpose of Written Discovery
Initial rounds of discovery are often purely informational in nature – identifying the people, documents, and events relevant to the case; getting an understanding of the facts and law the other side contends supports its claims or defenses; understanding the extent of claimed damages; and determining which facts are actually in dispute. Great litigators dig into the responses to find the threads that need following and may eventually turn into trial themes. They build timelines of key events to help them tell a story of what happened. They develop a cast of characters to understand how different actors shaped key events and outcomes. All that effort in understanding the story will lead to well-developed deposition outlines and further requests for discovery. Those subsequent discovery demands are typically more focused on the specifics you need to prove your case at trial.
The Pitfalls of Written Discovery
But too often civil discovery proceeds in a shotgun-blast approach, with each side firing at their adversary repetitive and excessive demands covering a broader range of topics than necessary. These traded volleys can quickly devolve into a war of attrition. The resulting massive disputes over terabytes of data are what often drive the extraordinary costs of civil litigation and are what can make arbitration (with far more limited discovery) an attractive alternative to some litigants. If your adversary is keen to dig in for trench warfare, your tools for limiting their efforts are typically limited. Discovery statutes are typically construed broadly and California, for example, welcomes so-called “fishing expeditions” for potentially relevant evidence.
Additionally, plenty of civil litigators have raised the skill of drafting argumentative, long-winded legal gobbledygook in response to the most basic and straightforward questions into an art form. While some judges will crack down on parties that engage in evasive discovery responses, many expect the parties to work out discovery disputes among themselves and will not enforce consequences for this type of discovery abuse. As a result, responses to written discovery will rarely provide you with the crisp, clean admissions you would want to put in front of a jury. Instead, they are typically a jumping off point for deposition examination and document requests.
Some jurisdictions limit the number of written discovery demands that can be made or the number of depositions that can be taken (but quite frequently, a party can overcome these limits by demonstrating “good cause” – a standard that is notoriously difficult to define). Discovery referees and informal discovery conferences (for courts that allow them) can reduce the costs associated with discovery motion practice, by streamlining discovery dispute resolution, but these are again only as effective as your attorney’s ability to articulate a discovery plan that will prepare you for trial and then stick to it.
How a Great Lawyer Uses Discovery
Your counsel should be able to articulate to you the discovery strategy – what information they need at the outset to get a good understanding of the case, and then what follow up to do to fill in any gaps in the record. They should be able to explain how the discovery ties into prioritizing depositions and what approach to take with each witness (are you taking the deposition mainly for informational purposes to learn key facts? Are you trying to lock a witness’s testimony in to keep them from surprising you at trial? Are you going to build testimony to undermine the other side’s summary judgment arguments or to bolster your own?). A good discovery plan cannot be premised on serving an overwhelming volume of demands and/or replying to all demands served on you as evasively as possible. Discovery must first and always serve the purpose of preparing for trial. In the process of preparing your case for the jury, your lawyer will learn your cases strengths and weaknesses and will learn the same about the other side’s case. A great discovery plan will not only put you in the best position for trial, it will make a successful settlement before trial much more likely.
Our trial lawyers begin every case by thoughtfully designing a discovery plan focused on winning your case. We build the record that will support the arguments that lead to great results. And our trial results really do speak for themselves. Bring us your toughest case and we’ll get the job done.