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There is nothing quite so important in the ongoing management of a complex civil litigation as the documents that are produced in discovery. The validity of the action essentially rests there. And there is nothing quite so criminal for the trial team as to lose control of those very same documents. Most of the responsibility for document acquisition and retention falls to the paralegal, who structures the onslaught of paper with a tracking system of documents produced, depositions taken, expert witness reports, and a whole host of ancillary media output. The latter includes photographs, film, PowerPoint presentations and video-synchronized discs representing the real-time deposition, to name several examples. Consider the paralegal as the mother hen, keeping the document acquisition and production close and “warm.” It is a daunting task, sometimes appearing insurmountable. Nonetheless, it must be done . . . and won. Discovery uncovers the information and materials that are relevant to the case. It is used to create a level playing field so that the action before the court can be reviewed on its merits, and not become an unfair advantage to one party or another. As the trier of fact, judges do not want to get blind-sided by information that is not reasonably forthcoming. Attorneys with a good offensive strategy in litigation are the very same attorneys who are in control of the process of discovery. And, to their benefit, move the action along while keeping the other side off-balance and reactive. Timing, obviously, is critical to the success of discovery. The paralegal is the central cog in the discovery process, and needs to keep in the loop in the attorneys’ strategic plans, interpret the case’s “hot-button” issues, and provide the trial team with a seemless production in the case’s discovery window. When a paralegal becomes involved in litigation, or is assigned to a trial team, the first document that he should be intimately familiar with is the filed complaint. And, at the same time, print a copy of the Pennsylvania Rules of Civil Procedure, specifically the rules (Pa.R.C.P. 4001 thru 4025) that define the parameters of depositions and discovery. Or, in the case of a federal action, the Federal Rules of Civil Procedure, specifically Fed.R.Civ.P. 26 thru 37. This is your mark-up copy and should never leave your workstation or your sight. Don’t forget as well the local court rules that apply, be it Philadelphia County, or Allegheny County, or, on the federal side, the rules of the jurisdiction where the action is housed. The rules of discovery become your navigational tools through the entire process, and the court. Formal discovery is generally cut-and-dried in its components: interrogatories, depositions, request for production of documents, requests for admissions, expert testimony, request for entry upon property, and physical and mental examinations. Regarding the latter, it is not an entitlement in federal court, but, rather, determined by a court order approving a motion for good cause. Not that the paralegal has enough to do at that point, but certain critical lists should be created, and maintained, during the time frame of discovery, and in anticipation of a firm trial date. These include: A log of all depositions taken, errata or correction sheets signed, the depository of all hard copies of the depositions, and the video sync discs of those that were taped, and deposition summarizations for the trial team. Start a witness list, confirming current contact information. The court’s pre-trial order will determine when the witnesses for each side are to be listed and exchanged. Begin an exhibit list, starting with documents already identified by the trial team as significant, and documents produced for deposition purposes. Again, the court’s pre-trial order will determine when the trial exhibits are to be exchanged between the parties. So, get a jump on the process. A key function of the paralegal, at the outset of litigation, is what is generally termed “informal discovery.” The term does include client interviews, surveillance and witness interviews, to name several. Also, the Internet has allowed the search for public records, and articles and treatises written about the subject area that is the crux of the action. All of these resources are collectively described as “backgrounders.” Although they may not, in and of themselves, be considered admissible, they are likely to lead to admissible evidence. Informal discovery, usually performed by the paralegal, plays a strategic role in the discovery process. Discovery is an exciting part of the litigation process, searching for all relevant information, making a professional interpretation of the results, and working with the trial team to place the findings together in a pattern that is most advantageous to proving the client’s case.

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