Pre-Trial Advocacy

10 February

• Mauet is excellent on written discovery.
• Discovery is a nightmare in almost every case, apparently: lots of money spent, lots of egos involved, and people sniping at one another.
• Forms of discovery:
  • Initial disclosures
  • Interrogatories
  • Requests for production
  • Depositions
  • ...and so on
• When you do formal discovery of the other side, you are leaking strategic information: your requests tell the adversary something about your case. Also, you'll be getting lawyer answers, which are going to be as unhelpful as possible. Saving major issues for the deposition is wise, therefore. Use interrogatories for just basic facts. An interrogatory should either:
  1. Ask for an objective fact (that can be verified)
  2. Ask for a fact that the opposition will have to disclose anyway
  So ask for the basis of damages, or the basis of defenses, etc.
• Take advantage of SEC filings: you can find out a lot of stuff without formal discovery. Google, use public records, etc.
• Many counties (MKE, e.g.) have their own limits on discovery.
• The Zubulake cases (southern district of NY) tell you about e-discovery. There's also Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities. See also the Sedona Principles.
• Over 50% of e-discovery cases result in sanctions. Defendants are 3x more likely to get sanctioned.
• Be as simple, clear, and concise as possible, and have a goal in mind (i.e., what do you think you can get out of this).
• Think about: if I didn't want to answer this openly and honestly, how would I respond? also, would a judge understand this question and think it's fair and reasonable?
• Don't delay with discovery. If you don't understand what is sought (i.e., if it's very broad, or you want to contain scope), pick up the phone and negotiate the meaning of the request (without being misleading). Always document agreements. Always preserve objections.
• Always save a couple of interrogatories-- you might need them right at the end.
• Note that failure to object in a specific and timely manner waives objections. Extensions past 30 days are common, but document any agreements to that effect.
• Note that the client signs interrogatories: this means you have to leave yourself time to let the client look them (or their answers) over.
• Redacting documents: privilege, trade secrets, but also personally identifying info of individuals (e.g., SSN, especially if the document might become part of the public record).
• Don't be shy about asking why something is redacted.
• Ask for the adversary's record retention policy.
• With document requests, start with specific docs, and then save broader requests for later (to avoid the initial dump-truck effect).
• Requests to admit: short requests about objective facts.
• Requests to admit can solve evidentiary issues (i.e., "admit that these docs are business records").
• Nobody wins a discovery fight; if you can't avoid a dispute, use it to reinforce your case theory (i.e., as you're briefing the issue for the judge, give helpful background).
• When you get a writing assignment (like a memo) write as though it could be used to take the matter to the next level (like a complaint, or a summary judgment motion, etc). This is a way to be helpful, and also to put yourself in line for more work.
• Memo: start with the questions presented, then the facts relied upon, then legal basis for the claims, then possible defenses, then discussion (how do the legal principles apply to the facts of this case), and finally a recommendation. Also, always tell statute of limitations or other deadlines (and keep your own calendar to remind yourself to check back with senior partner about them).