As a new litigation attorney, one of your first assignments will undoubtedly be related to the “discovery” phase of a case. Whether you are asked to prepare or respond to discovery requests, draft a motion to compel, review documents or craft a deposition outline, you will be shaping the case in a powerful way. In law school, fact patterns were provided to you by your professor; but in the real world, discovery is your chance to uncover the facts. What you find will impact trial strategy, dispositive motion practice and can drive settlement. This article takes you through the discovery process. Like all (fine, most) successful endeavors, this starts with a plan.
Think of the discovery process like a puzzle. First, you need to get the “big picture” so you know what you’re looking for. Then you can find and fit in the pieces that make up the picture. Start by reading the jury instructions for each cause of action at issue and the key decisions in the practice area. The jury instructions and case law will give you a better understanding of the factual and legal elements you will ultimately need to prove or disprove using the evidence revealed in discovery. With these elements in mind, you can put together a discovery plan that targets specific information for your case.
Requesting Information From Your Client
Often, the first place to start is with your own client. Whether you represent a plaintiff or defendant, corporation or individual, it is imperative you know everything about your client’s role. Your opponent will likely request copies of all documents related to the claims and defenses at issue, so the gathering process should start sooner rather than later. Early collection and internal review of documents will allow you to analyze the information contained in the documents and determine which external sources, if any, you should focus on. During your review, note and segregate documents that are privileged, confidential, proprietary, nonresponsive or otherwise protected from disclosure.
In sum, remember to:
• Start with drafting a discovery plan.
• Interview your client regarding the claims and allegations in the complaint.
• If your client has been sued for a similar incident in the past, obtain the discovery/documents from the other case(s).
• Request and review all related documents in your client’s possession, custody or control.
• Obtain names of witnesses/companies through your clients or documents that may have information relating to the incident.
Requesting Information From Your Opponent
The next place to seek information is from your opponent. Both California Civil Procedure and the Federal Rules of Civil Procedure provide for written discovery and depositions as procedural mechanisms to obtain factual information about your case from your opponent. Additionally, the federal rules impose an ongoing obligation on all parties to disclose the witnesses and documents they intend to rely upon, absent any request for the information.
The procedural devices to obtain information from your opponent fall into two categories: written discovery and oral depositions. The typical sequencing of litigation provides time to propound and review written discovery, including documents, in advance of taking your opponent’s deposition. Written discovery requires your opponent to provide all of the evidence that supports the allegations made in the complaint. Requests typically include the identification of witnesses, documents and facts the party intends to use at trial. Make sure to propound at least some written discovery at the outset of the case so that sufficient time exists to bring a motion to compel, if necessary, prior to the deposition and dispositive motion cut-off dates.
After written discovery is exchanged, you should attempt to independently confirm or discredit the information contained within the responses. Follow up with your client regarding the information and reach out, formally or informally, to third parties (discussed more fully below). Now it’s time to notice depositions.
To prepare for the deposition of a plaintiff, defendant or any other fact witness in a case, it is again useful to refer to the applicable jury instructions to focus areas of inquiry in your deposition outline. Determine what documents you need the witness to authenticate, what facts the witness can establish, and what you can use to attack the witness’s credibility. Allow yourself enough time to organize all of the information needed to plot out an effective examination.
The following formal tools seek information from your opponent:
• Initial disclosures (federal court only)
• Form/standard/employment interrogatories (state court only)
• Special interrogatories
• Requests for admissions
• Requests for production of documents (including electronically stored information)
• Site inspections
Requesting Information From Third Parties And Government Entities
Because litigation is an adversarial process, do not expect to obtain all of the information you need from your opponent, or even your client. Often, third-party individuals, companies or governmental agencies possess case-critical information. Consider Freedom of Information Act requests, public record searches and using people-finder websites. If you do not request certain information from third parties, it is likely to remain dormant. Think about hiring a private investigator to conduct interviews of and background checks for key witnesses. Other potential sources of information include:
• Nonparty witnesses, such as ex-spouses, friends, former employees, co-workers and supervisors (remember to ask if they are represented by counsel)
• Government agencies
• Current employer
• Former employers
• Records, such as: medical, hospice, autopsy, employment/union, military/veteran’s administration, pension, Social Security, other court files and claims, including personal injury, bankruptcy, workers’ compensation, trust and domestic proceedings; government-issued permits and background information (criminal and civil search, business, licenses)
Court Order Required for Certain Discovery
Certain information is protected by a qualified right to privacy by the state and federal constitutions and you will need a court order allowing for the discovery of that information. For example:
Financial condition: If you represent a plaintiff, and punitive damages are at issue in your case, you can bring a motion for an order permitting discovery into the financial condition of the defendant if a court finds that the plaintiff has demonstrated there is a substantial probability he will prevail on his punitive damages claim. Winning this motion can be a game-changer.
Physical or mental health: A court may order a plaintiff to submit to a medical examination by a doctor requested by a defendant, or a different, court-selected doctor, even absent a plaintiff’s consent. The defendant must show that the results of the examination are necessary for the defendant to adequately prepare a defense to plaintiff’s claims of injury and damage.
Sequentially, expert discovery comes after fact discovery. But the facts developed during fact discovery inform your experts’ opinions, so always keep the big picture in mind. Talk to a senior associate or the partner on your case about which expert witnesses are anticipated, and what information you should develop for those experts during fact discovery. Also remember to send the underlying materials to your expert well in advance of the designation and cutoff dates so she has sufficient time to prepare expert reports, if required, and her testimony for deposition.
• Draft a discovery plan at the outset of the case and review it with a partner or senior associate.
• Keep a “cheat sheet” of commonly used objections and support for same, and conversely, commonly used authority for seeking/compelling further responses. This will make the written discovery process a little less painful and a lot more efficient as time goes on.
• Keep a work product index of all potentially relevant or sought after documents with a “notes” section detailing the location of the document and reasons to or not to produce it
• After you have put together a detailed deposition outline, try not to read from it during the deposition. Some of the best information can be missed by an inexperienced attorney who relies on the outline to the exclusion of probing further into information disclosed by the witness. Use the outline during breaks or at the end of the deposition to ensure you covered critical areas of inquiry, instead of as a script.
• Keep a file of sample motions, meet and confer letters, deposition transcripts and outlines that impress you. You should and will find your own voice, but in doing so, it helps to see how others have previously tackled these projects.
During the thick of it, the discovery phase can feel tedious and sometimes even boring. At those times, stand up, take a step back, think of the big picture, and remember you are gathering and assembling the puzzle pieces of your case. Missing pieces leave holes in the picture, and we assure you, your opponent will find them. So remember your work is important; in fact, it’s essential. May your new year be filled with growth and success!
Jayme C. Long is a civil trial attorney in McKenna Long & Aldridge’s Los Angeles office. Her practice is concentrated in litigation with a primary focus on toxic torts, premises liability and products liability. She can be reached at firstname.lastname@example.org. Celeste M. Brecht is a litigation associate in firm’s Los Angeles office. She can be reached at email@example.com.