YourABA November 2011 Masthead

Tips on winning discovery disputes

According to Joel Ewusiak of Forizs & Dogali, PA, many courts have recently adopted rather onerous orders to deter motions to compel discovery, leading counsel to go back and forth to resolve disputes before the judge will even hear the motion at hand.

Speaking on a Section of Litigation podcast, “Winning Discovery Disputes,” Ewusiak further warns that these orders frequently outline that, should a judge ultimately have to hear the discovery dispute, the losing party has to pay the winning party’s attorney fees and other costs.

Minding the common objections in discovery disputes can help ensure that lawyers end up on the winning side if they must go in front of a judge, advises Ewusiak, elaborating that with the exception of attorney-client privilege and work product, there are just a few objections to consider.

Discovery objections commonly involve requests that are simply not specific enough about the evidence sought. These requests are typically overbroad, unclear in meaning or use terms that are susceptible to more than one meaning. In federal court, some requests face objections for not being reasonably calculated to lead to the discovery of admissible evidence.

Lawyers should not rely heavily upon the definitions section to define the scope of their request.

Whether the request is an interrogatory, a request for the publication of documents or a request for admissions, lawyers should ensure that their requests are specific and present all the relevant information for the judge to make a determination, Ewusiak suggests.

Also, attorneys should not rely heavily upon the definitions section to define the scope of their request.

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“Certainly there is a place in definitions [section] for defining the names of parties and so forth, but when it comes down to it, you want to put all of the information that you’re requesting, as specifically as possible, in the request itself,” he says, pointing out that detail included in the definitions tends to get overlooked.

Ewusiak further recommends that lawyers focus on the big picture when making requests. “It’s important to not waste time focusing on little, minute details that at the end of the day aren’t going to assist anyone in resolving the dispute.”

Instead, “focus on the key facts that will be relevant to the issues in the case and gathering the evidence that is necessary to prove what you’re trying to prove.”

Winning Discovery Disputes” is part of the Section of Litigation Sound Advice library, a collection of podcasts designed to help members become better lawyers. Other programs cover pretrial, trial/arbitration, young lawyer, professional development, federal practice and judicial topics.

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