Tips for new litigators: practical discovery rules

I prefer getting documents and taking depositions as the principal means of discovery in most cases. If done right, the documents-then-depositions, with limited written discovery, approach is more cost-efficient and effective than any written discovery. Litigators spend far too much time fighting over written discovery. We get locked in time-consuming discovery sideshows which cost the client money, delay resolution of the matter, and often do little to further the strategic goals of the case or get it prepared for trial. We make money, for sure, but, in my view -- this is not the way to go. Written discovery has its place in modern litigation and, at times, is well worth the fight to get it. But a great deal of the time, it is not. With that perspective in mind, I offer up some practical rules for written discovery.

Rule 1: Before proceeding with written discovery, simply and seriously consider whether it is worth the effort. It is a reasonable assumption with most any written discovery you propound will result in a larger discovery set coming back at you, lodged objections, lengthy meet and confer exchanges, threats of motions and sanctions, actual motions and sanctions, delayed trial dates, and increased costs to the client. Do you really need that written discovery? Does it align with your case theories? Can you get the information in a more candid response to a question at deposition? Is the discovery response you seek really worth the hassle of getting it?

Rule 2: As a corollary to Rule 1, never propound written discovery that you are not willing to enforce by motion. If the discovery is not important enough for you to enforce with a motion to compel, it is likely not important enough to propound in the first place. Why propound discovery that you are not willing to fight for? Do the cost-benefit analysis at the front-end rather than in the middle of the resulting discovery battle.

Rule 3: Use requests for supplementation of prior written discovery, rather than propounding successive sets of new discovery requests. Propound succinct, well-crafted, meaningful discovery requests at the outset, get responses, and then seek supplementation of those responses throughout the case. If you have to fight over that written discovery in the first instance, do so! But, once that battle is over, you should have a set of rock-solid written discovery requests which the court has passed upon and are not fairly subject to further dispute. You can then seek supplementation of your opponent's responses to those requests throughout the case. If you have to fight over written discovery, fight once, and do so over meaningful, well-crafted, discovery that is necessary to your case or defense.

Rule 4: Do not use form interrogatories for anything but the simplest of cases. They often, and most always in complicated cases, result in objections. And, in my view, rightfully so. Just the description of the "Incident" in anything but the simplest of cases is properly ripe for dispute.

Rule 5: Do not include detailed definitions for requests and instructions for how to respond. Most every discovery set I receive these days contains, at the outset, several pages of definitions and detailed instructions for how to respond. Quite often, these definitions and instructions require the responding party to do much more than the code requires, invite objections, and infuse privilege issues where none should exist. This is all completely unnecessary. The code says what it says as to the requirements for discovery responses. A simpler, more effective, approach is to simply propound the discovery -- i.e., ask the question you want to ask -- and expect back a response that comports with the code.

Rule 6: As a corollary to Rule 1, but for the responding side, do not object to written discovery if you are not willing to defend your objection to the court under threat of sanction. If your opponent is following Rule 1, a motion is coming when you object. You thus need to determine whether the contemplated objection is really worth fighting over. Do the cost-benefit analysis at the front-end rather than after the battle has been joined by your opponent. If the objection isn't worth the battle, why object? It's a waste of time and money, and often undercuts the strength of your litigation position.

Rule 7: Do not object to written discovery and then provide responses subject to, and without waiving, the raised objection. Either the discovery is objectionable, or it isn't. Does it really make sense to object to an interrogatory as vague and then answer it anyway? No. Also, following this rule requires you to undertake the honest analysis of whether a request is really objectionable or whether you are just throwing out objections to throw out objections.

Rule 8: Meet and confer before responding to the discovery. If discovery is truly objectionable and you are willing to fight over your contemplated objection (see Rule 6), try to resolve the objection before responding. An email or, even better, a call to the other side identifying the issue and seeking resolution before you have to respond will serve to streamline resolution of legitimate disputes. If your opponent will amend and clean up an interrogatory before you have to respond, you may avoid a time-consuming discovery battle.

Rule 9: If you are stuck in a discovery battle, insist that required meet and confer efforts are undertaken face-to-face. Let's face it -- most discovery issues are just not that complicated. Sit down in a room, face-to-face, go over the objections, solve those you can solve, tee the rest up for resolution by motion, and confirm your agreements and disagreements in a simple writing. It is much easier for your opponent to take an unreasonable discovery position in a late Friday afternoon email than it is for him or her to do so sitting across from you in a conference room.

Every case is different. And the discovery necessary in each case is different. These rules may not work in every case. But, I think they provide a framework to think practically about the effective, and cost-efficient, use of written discovery. 