Discovery disputes are commonplace and they inevitably will come up in all types of litigation matters. There is often an inherent tug-of-war dynamic, as the competing lawyers test one another’s boundaries. A lawyer’s client may instruct him or her to pursue a particular avenue of discovery inquiry, believing it will expose vulnerabilities or open a path to winning the case. It is important to balance the need to be assertive with the requisite level of compromise that may be prudent. In order to help you persuade your adversary and the judge who may be deciding your dispute, as well as to provide top-level client service, here are four tips designed to help you successfully navigate your path.
Meet and Confer
Meeting and conferring in good faith before bringing the dispute to the court is a generally recognized requirement in most courts, and it is the best practice to follow. It is important to show your adversary that you have put well-considered thought behind your discovery position and that you are seeking to advance your client’s position on the merits, rather than simply engaging in a fishing expedition or playing hardball. Consider initiating your dialog with a letter or an email describing your arguments, followed by a telephone call or, if possible, an in-person meeting. While you may go into the process skeptical, if you pursue your position earnestly, you may be pleasantly surprised with your ability to negotiate an acceptable resolution. Even if you cannot do so, your efforts will serve you by creating a record that you have been thoughtful in handling the issue and reasonably exhausted efforts to resolve the matter informally before consuming court resources.
Have Legal Support
Find legal support for the discovery position you are taking. As compared to simply firing off a missive containing bald argument, it may take you more time to do the research in advance, but having a command of the governing law will best inform you on how to negotiate the issues, prevent you from wasting time on an unwinnable point, and may quickly diffuse a recalcitrant opponent. For instance, if you want defense counsel to produce a copy of the reservation of rights letter issued by the defendant’s liability insurer, research whether the governing law permits discovery of such information. If you want to compel the plaintiff to submit to an independent psychiatric examination in an emotional distress case, find out what the law permits regarding the types of claims that must be pleaded, the reliable methods of psychiatric and psychological testing, and protocol details such as duration, breaks, and who can be present for such examination. Knowing the applicable law on discovery in similar situations shows the other side and the court you know what you are talking about.
Be Reasonable and Have a Plan
You should know what discovery you need most and why, and how that discovery will translate into evidence you can use in the case. Many times discovery disputes fall into a gray area, where both sides have competing interests and rights that must be balanced. It is not always the case that one side is completely right and the other side is completely wrong. If you have a plan, you can pick your spots, knowing where you must push hardest and where you have room to let up. If you need particular evidence to use in briefing a motion for summary judgment, that may be a reason to push hard to get certain critical discovery. If the other side is resisting too much on something that is very salient, that might be a sign that there is helpful evidence behind the objection. On the other hand, if you have cast a wide net with your requests, that might be time to consider narrowing the scope of your requests as a measure of compromise. By compromising on some issues you likely will show yourself to be a reasonable lawyer who has balanced judgment. It is of course your duty to be a zealous advocate for your client. Also think carefully about ancillary factors, such as the costs that will be incurred if there is motion practice, and the impression the dispute will make on the court.
Explain the Process to the Client
There is more to managing a discovery dispute than negotiating with your adversary or briefing the court. There is also your client! Your client may have expectations about the discovery process. It may be upsetting to your client to have to produce information, or your client may believe the other side is not playing fairly if there are objections to your requests. On the other hand, if you are eliciting helpful information in discovery, that gives you a reason to give a positive report to your client. If you are being paid on an hourly basis, the client will see the time on your invoices; an explanation of why you are incurring time on the process can be very important to your client relationship. It is very important to talk to your client about how the discovery process works, why it is necessary to engage in a proper scope of discovery, the risks and rewards attendant to discovery motion practice, and that the courts expect lawyers to work cooperatively and practice professionalism.
Keep the foregoing tips in mind when addressing a discovery dispute to best represent your client’s interests.
Jared M. Katz is a partner at Mullen & Henzell L.L.P. in Santa Barbara, California.
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