October 17, 2018
The most important part of civil litigation is pretrial discovery. That is where the parties are supposed to disclose to each other, and “discover” from each other, the facts that support their claims and defenses. Most attorneys approach this process from a disjunctive perspective that is counterproductive to their client’s interests. And, not surprisingly, most clients are passive participants in what their attorneys are doing. Institutional clients, in particular, are more than happy to ‘do less’ when providing discovery, because ‘doing more’ requires time expenditures from line staff that are most always uncompensated.
The purpose of this article is to suggest that counsel should adopt a holistic perspective in responding to pretrial discovery. That is, they should take control of the process and use it to their client’s advantage, rather than regarding it merely as an occasion to object and what until they have to dole out a few scraps of information when forced to do so. To some extent, the Federal Rules have already rejected that philosophy, and adopted the one I am advocating, in the mandatory disclosure process referred to as “Rule 26 Discovery.” There, the federal courts have taken the sane perspective that there should be no doubt that basic information, such as the names of witnesses and a description of what they supposedly know, calculation of categories of damages, identification of pertinent documents and disclosure of experts, if known.
To be clear, I am not advocating that counsel abandon adversarial techniques in pretrial discovery responses. Rather, counsel should consider that pretrial discovery responses are not primarily an opportunity to hide information. They should be seen as an opportunity to disclose those facts, documents, witnesses, experts, etc., that will support the affirmative positions or defenses you will need to take on behalf of your clients. Here is how to do that.
First, most counsel think that the first round of discovery responses do not matter. They would just as soon pass them off with boilerplate objections as to overbreadth, undue burden, and lack of a reasonable chance of leading to the discovery of relevant evidence. If you are client and think that is helping your case, think again. There are two messages that boilerplate responses convey to your adversary. First, your counsel and you are not willing to devote the resources necessary to actually read the questions and fashion appropriate objections where applicable. Second, they lack sufficient understanding of their client’s actual position which conveys a lack of confidence in their client.
How many times have you heard another lawyer say that almost any question is objectionable because the English language is just not that precise. One can always find an objection as to form to almost any question. Many lawyers who draft discovery requests are not experts in their adversary’s business model; their questions are framed based on past experience. Many Plaintiffs’ attorneys do not want to spend the time crafting their questions so they will withstand appropriately targeted objections. If we combine that with the general imprecision with which most lawyers write, the result is discovery requests that can legitimately generate one or more specific, non-boilerplate, objections.
Secondary to the preceding point is that the attitude of the courts, again with the federal courts leading the away to showing increasing intolerance for boilerplate objections. This will take some time to filter through may state courts that do not have the luxury of individual case management for every case or the informal process of adjudication that many federal courts have committed for many discovery disputes. But, change is coming.
I concede that, at the margin, that boilerplate objections will throw some adversaries ‘off the trail’. But even if that happens, leaving an answer at the stage of boilerplate response will have an unintended consequence. The reliance upon the objections as a basis for lack of disclosure will have preclusive effect at trial.
If counsel invests the time to thoroughly understand the client’s substantive position and digest the questions posed, then the responses can include objections that will protect unfavorable information while the information that is disclosed will serve the client’s substantive interest.
Now that we have set our philosophy for responding in place, here are some points to keep in mind when preparing responses.
First, make a list of the information, including identification of witnesses and documents that you want to have disclosed to support your claims or defenses.
Second, take control of your client’s documentary research. While many attorneys are gaining increasing sophistication in production of electronically stored information, their clients’ understanding is not always so ‘current.’ Clients need to be educated not only as to preserving hard-copy documents, but electronically stored information as well. Particularly in light of the increasing use of text messages and email for communication between business partners, counsel should become directly involved in establishing search parameters for the client’s information technology or other personnel who may be harvesting the client’s data for production.
Third, in cases where the dispute arose from an ongoing relationship between the parties, once both sides produce their discovery, you will need to match your client’s production against the other side’s. If the productions are “complete”, they should in many respects “mirror” each other. If your client sent an email and attachments to the other side on a particular date, the adverse production should include that same email and attachments. If it does not, then the other side has not made a complete production.
Fourth, do not make, and do not accept, a mere “document dump” as the mode of response. While it is acceptable for parties to answer Interrogatories by reference to documents, those references must comport with the requirement that the Interrogatories be answered “separately”. Unless the response makes reference to the documents in a way that allows the receiving party to easily identify responsive materials, it is inadequate.
Fifth, related to the above, whether documents are produced as part of Answers to Interrogatories or a Response to a Notice to Produce, they must be produced as they were kept in the “ordinary course of business” or in a manner that is referable to the specific Interrogatories or categories sought in the Notice to Produce. Here, again, take the time to review and organize the documents appropriately. You may think that it is ‘o.k.’ to ‘make your adversary work’ to figure out which documents are responsive to individual Requests. However, you are going to have to expend the same effort in the event you want to use the documents substantively as the case progresses. Most judges will ultimately force the responding party to do so should the propounding party seek to enforce this requirement.
We hope that these comments will assist you in representing your clients aggressively and effectively by organizing the information they have to produce in a manner that advances their interests and comports with the applicable Rules. In addition, making appropriate objections to your adversaries’ discovery Requests, and holding them to the requirements of the Rules for their Responses, will assist you in defending and protecting your clients.