Litigation 101: Checklists for New Litigators
Your First Document Inspection
By Samuel E. Gasowski
Handling your first document inspection, like any discovery that is conducted face-to-face with opposing counsel, can be a nerve-racking and intimidating experience. However, good preparation and cooperating with opposing counsel will help alleviate this stress and streamline the process.
- Do All Necessary Legal Research in Advance. There is no short-cut here. You must read all the substantive and procedural rules concerning discovery in general and those rules specific to document inspections. Put your rule book in your brief case and bring it with you to the inspection. Read secondary materials. Review and research all the resources at your disposal. Pay close attention to the particulars of your case and look for helpful hints that are specific to your situation. Do not forget basic keyword searches in the digest or on Westlaw or Lexis – there may be a reported case out there that discusses a nuance which concerns your case and which you have not yet considered.
- Cooperate. It may be cliché, but you must cooperate with opposing counsel. Scheduling a document inspection is, arguably, one of the more difficult items to schedule in litigation. There are several competing things to consider: attorneys’ schedules; staff schedules; clients’ schedules; clients’ operating hours; other deadlines; etc. It is most helpful if the party intending to perform the inspection calls the other side and attempts to work out a mutually-agreeable date and time. Avoid noticing an inspection without first trying to work with opposing counsel. Federal Rule of Civil Procedure 26(f) mandates that the parties develop a proposed discovery plan and many local rules require further cooperation prior to filing a motion regarding a discovery dispute.
- Consider Timing Carefully. It is imperative that you consider the timing of your inspection, both vis-à-vis the trial date and other discovery. You will want to know the extent of what is available to inspect before noticing an inspection. Generally speaking, you will need to do other discovery before knowing exactly what is out there. You may have access to a factual “expert” who is very knowledgeable as to what is available to inspect, such as a former employee of the litigant. Should that be the case, there maybe some benefit to conducting the inspection sooner, so that documents are not lost or destroyed. Analyze the timing carefully. Ask your colleagues what they think and do not forget to consult with your client, who may offer suggestions or other considerations which you have not yet pondered.
- Review or Prepare the Notice Carefully. After you have cooperated with opposing counsel and have agreed upon a date and time, and perhaps even the nature of the inspection, prepare your notice carefully. If you are served with a notice, review it carefully. If your case is in federal court, review Fed.R.Civ.P. Rules 26 and 34 carefully. Then, read them again. If the notice is troubling for any reason whatsoever, now is the time to make your objections or seek a protective order. Remember that under Fed.R.Civ.P. Rule 26, the court has the power to impose conditions on discovery. If it truly is burdensome on your client to go forward with the inspection as noticed, and opposing counsel will not compromise, do not hesitate to seek relief from the court. While you must cooperate in discovery, avoid subjecting yourself or your client to overly burdensome requests.
- Make All Necessary Preparations. Depending on the type of inspection, there may be several preparations you need to make. If you are inspecting documents, you will need to make arrangements for a copy service or bring your own copier and support staff. Also, both parties need to confirm the nature of the inspection, especially if the particulars are not discussed in the notice. Consider meeting location, breaks, time at which the inspection will conclude, nature of inspection. The nature of the inspection might include physical inspection, copies, photographs, video or audio recordings, and the like. Of course, this is best done in advance and in writing. You do not want to make arrangements for the inspection to go forward, only to have a basic, fundamental misunderstanding as to the nature of the inspection. Remember, judges dislike discovery fights between counsel. Don’t expect the judge will necessarily come to the rescue and make him or herself available to take a phone call from two attorneys who are ensnarled in a nasty argument at a botched inspection. Anticipate potential disputes and take care of them in advance, so the inspection can go as smoothly as possible.
- Arrive Early. This should go without saying, but you must be on time. If you are conducting the inspection, you will want every second you can get; even if you can continue the inspection, it will save you time (and your client money) if you can get the inspection done in one sitting. If you are defending the inspection, you should to be 100% ready to have the inspection move forward at the agreed-upon time. This includes making all necessary arrangements with your client, some of which are discussed below. If you are unfamiliar with the area in which the inspection is to be conducted, you will want ample time to familiarize yourself with it. You will need to know the exact location of the inspection and how long it will take you to get there. You should also investigate the area for hotels, places to eat, office supply stores, copy centers and restrooms. You may also want to locate a place to make or receive private phone calls.
Special Considerations for Conducting a Document Inspection
- Leave No Stone Unturned. Often, the timing of your inspection will help with this. Consider your ability and need to perform inspections as you conduct other discovery. Carefully craft interrogatories and document demands so that you know the entire universe of what is available. In conducting depositions, follow every lead to its logical end, especially those which concern the universe of documents available to inspect. Know that witnesses often “forget” things while being deposed. However, when it comes to the extent or location of documents which may be subject of an inspection, confirm the witness’ role and what it is that he or she cannot remember. Many times, this will refresh their memory. Example: Q: Where are the 2004 accounting records for Company X kept? A: I can’t remember. Q: You testified earlier that you are the custodian of accounting records for Company X, correct? A: Yes. Q: And as you sit here today, under oath, as the custodian of records for Company X, is it your testimony that you do not know where Company X’s 2004 accounting records are kept?; [follow-up] Q: Who does? If the accounting records later resurface (for example, at trial), you have laid the foundation for an excellent objection.
- Be Reasonable. Consider the nature of your request and conduct yourself accordingly. If something new comes to light during the inspection, it may not be appropriate to require or even request that you be able to inspect it “that day.” However, it is almost always appropriate to tell opposing counsel that you want to inspect that particular something that has just come to light and 3 that you will serve a proper notice at a later date. Sometimes, opposing counsel may allow you to inspect it “that day.” Also, be mindful of the behavior of your staff and assistants. Generally speaking, communicating with representatives of the opposing party is not appropriate. The opposing party is represented by counsel. Your questions and requests should be addressed to their counsel and not directly to the represented party. Be polite and courteous. Using “please” and “thank you” does not mean that you have failed to represent your client with zeal. Quite often, you will obtain more information simply by being polite.
Special Considerations for Defending a Document Inspection
- Consider using a “Baby-Sitter.” It is always a good idea to ask opposing counsel how he or she intends to conduct the inspection. It is possible that the inspection may not conducted by an attorney. In fact, the attorney ordering the inspection may not even be present at the inspection; he or she could use a paralegal, support staff or a third party, i.e., copy service. In the right circumstances and with the right preparations, you can “defend” the inspection by having someone else supervise, and you can avoid having to attend altogether. Discuss your participation with your client and discuss having a member of your staff (or even an employee of your client) “baby-sit” the party conducting the inspection. Should you do this, however, it is imperative that you give the “baby-sitter” specific instructions: “do not answer any questions;” “the inspecting party is only allowed to inspect X, Y and Z;” “if there are any questions, call me immediately;” and the like. Remember to be available by phone or make arrangements for someone responsible to be available by phone if you cannot be available. While it is important to consider this as an option, use it sparingly and carefully.
- Be Upfront with Opposing Counsel. It is may not be your responsibility to explain in detail each and every document that is available and its exact location. However, when asked, even if informally, you should explain the general nature of the documents, items or things to be inspected. This way, opposing counsel can make the necessary arrangements and you can reduce the likelihood of having to continue the inspection to another time. You might say something like, “The personnel records are kept in four filing cabinets, each of which has three drawers, is two feet in length and full of documents.” This may also prevent a dispute over what is and what is not to be inspected on the day of the inspection. Continuing the example, you might be able to say something like, “We have agreed you will inspect the personnel records in these three filing cabinets.” It is far better to sort those issues out in advance as opposed to having to deal with them “on-the-spot.”
- Anticipate Opposing Counsel’s Conduct and Be Prepared to Answer Questions. Opposing counsel may try to conduct “free discovery” while at the inspection. Consider what you know about their personality and litigation style and anticipate how you will respond. Remember that it is never appropriate to “put on a show” for your client. If you anticipate such behavior from opposing counsel, warn your client in advance and be clear with your client that such tactics are inappropriate and that you will not engage in them. Consider what questions opposing counsel may ask and prepare appropriate responses in advance. If you do not know the answer or whether or not their request is appropriate, tell them that. Explain that you need to conduct additional research and/or consult with your client. If appropriate, tell him or her they cannot inspect “it” now. If they are trying to inspect items which are outside of the scope of the notice, pull out the notice and review it with them. Remember to cooperate. Should there be a dispute, it is almost always proper to request that opposing counsel submit their request or position in 4 writing, particularly when you follow up such a request with (i) a promise to consider the request in good faith and if you determine that the request or proposed inspection is appropriate, (ii) a promise to allow such request or inspection to go forward. Cooperation is key.
- Stand Your Ground on Scheduling, but Do Not Be Unreasonable. If your client runs a business with standard business hours, consider requiring that the inspection take place afterhours or over the weekend. Be sensitive to your client’s concerns regarding employee morale. Consider the appropriateness of the demand and how it would be received by the judge. A reasonable judge will be far more likely to agree that the inspection and copying of ten years of personnel records in a retail establishment in full view of customers and staff during normal business hours is burdensome, as compared to an inspection of two boxes of accounting records in a small office in a warehouse where no employees are present. Similar to other aspects of litigation, you will want to pick your “battles” carefully. Do not waste time arguing over mundane, inconsequential details. Represent your client zealously, but take the high road. Avoid being “painted into a corner” by opposing counsel, such that you appear to be the unreasonable attorney. Unfortunately, many attorneys engage in gamesmanship. While it is difficult to do, avoid the urge to respond in-kind.
- Prepare Your Client . . . . CAREFULLY. If the inspection is going to take place during normal business hours, make sure you and/or your client prepare the business and its staff. Remind and counsel those who may be in ear-shot of opposing counsel as to what is happening, i.e., “the attorneys for the party who is suing us will be here on Tuesday to look at personnel records.” Remind employees that they need to be conscientious of what they say inside the walls of the business while opposing counsel is present as well as in the parking lot, in the restrooms, in surrounding restaurants, and anywhere nearby. In making these preparations, EXERCISE CAUTION. Consider doing this yourself, so that instructions remain privileged. Use care in having a staff member send out an email or providing oral instructions. The email may later be discoverable and the oral instruction may later come back to haunt you at a deposition, or worse, at trial.
Document inspections are far easier when carefully prepared for. Remember to use all the resources at your disposal and do not hesitate to ask for help or advice from a senior partner or mentor. Always be considerate; always cooperate to the extent you can without materially compromising your client’s position; and above all else, always be professional.