August 30, 2012 Articles

Defensive Strategies in Discovery: A Refresher

By following these tips, your discovery should put you in good stead for dispositive motions and trial.

By Kathleen B. Havener

The details of discovery vary by jurisdiction, but the basic methods of discovery are similar enough that you can develop a practical strategy for effective and appropriate defensive discovery. Defensive discovery involves extreme care, minimal waste, constant weighing of the costs and potential benefits of anticipated discovery, and effective use of the fruits of discovery in dispositive motions and at trial.

The general purposes of discovery are to uncover evidence, avoid surprises, narrow the issues, lock in key testimony, and—on occasion—permit recovery of certain costs and fees where appropriate. Taken together, these purposes often add up to time and cost savings for everyone involved. However, it is also important to look beneath the surface of discovery and decide which activities you truly need for your case and which activities may be unnecessary, wasteful, or even damaging to your claims or defenses. If you incorporate the following tips, your discovery should put you in good stead for dispositive motions and trial. You should also find discovery to be a useful tool to establish the strengths and weaknesses of each party’s case, which may move you both toward the often more efficient and less expensive result of pretrial settlement.

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