Pulling Teeth: Five Tips for (Relatively) Pain-Free Discovery

Five Tips for Discovery Success

1. Speak to your adversary ahead of time. Before even serving written discovery, consider reaching out to opposing counsel. Prediscovery communication is already required to a certain extent in federal court under Rule 26(f) of the Federal Rules of Civil Procedure, but parties rarely take full advantage of the benefits that such interaction offers. Often, you can preempt disputes simply by discussing discovery with your opponent ahead of time. For instance, in cases where you anticipate substantial amounts of e-discovery, parties can avoid future disputes by agreeing to a set of search terms to use for document production. Just be sure to memorialize in writing any oral agreements made with opposing counsel.
2. Make your written discovery requests as specific as possible. One of the best ways to succeed on a discovery motion (or avoid one altogether) is to ensure that your discovery requests are precise. We’ve all issued requests that read something like this: “Produce all documents that you contend support your claims [or defenses] in this lawsuit.” But while it may be a good idea to throw this catchall request at the end of your document requests, you should not depend on it to obtain key documents. Rather, thoroughly review the other side’s pleading (and initial disclosures if in federal court) and draft specific requests based on those. If you have colleagues who have handled similar cases, ask them for copies of the written discovery that they issued in those cases. The more detailed your requests, the better off you’ll be if it comes to a discovery motion. A judge will give your opponents much more leeway if they fail to respond fully to a generic request than if they fail to comply with a specific request that is unquestionably relevant. Arguably, specific requests are now even more important with the recent revision to Rule 26(b)(1) of the Federal Rules of Civil Procedure, which limits the scope of discovery to information that is both relevant and proportional to the needs of the case, replacing the former standard of “reasonably calculated to lead to the discovery of admissible evidence.”
3. Write a detailed deficiency letter. After you’ve received deficient discovery responses, you should always send a letter to opposing counsel identifying the deficiencies. This serves the dual purpose of preempting any possible waiver arguments and laying the foundation for a future discovery motion. The letter should demand amended responses and/or production within a certain time. In most cases, you should also cite Rule34(b)(2) of the Federal Rules of Civil Procedure, which requires that objections to discovery be specific. Draft this letter assuming that you’ll ultimately have to file it with the court. As such, be forceful in the letter, but don’t write anything that you wouldn’t want the judge to read.
4. Meet and confer. Be sure to request a meet-and-confer telephone call with opposing counsel in your deficiency letter, making clear that your request is made pursuant to the requirements of Rule 37(a)(1) of the Federal Rules of Civil Procedure, which mandates that parties confer in good faith prior to a motion to compel (check state rules for an equivalent requirement). Some courts will deny any discovery motion outright if the parties have failed to first meet and confer, and no judge will be pleased to hear that the parties did not make a good-faith effort to resolve their dispute before taking up the court’s time with a discovery motion. Go to the meet and confer prepared with the same arguments that you would make to the judge. Be civil and, when possible, noncombative and flexible during the call. But also challenge your opponents on how they plan to convince the judge not to compel disclosure. Even if you don’t reach a complete resolution, many opponents will compromise or capitulate on some items when faced with a strong argument and a threatened motion. Be sure to address each item that you want disclosed, and confirm with opposing counsel that you have reached an impasse as to each item not disclosed. Memorialize the results of the meet and confer in writing.
5. Prepare and file the discovery motion. If, after taking the foregoing steps, you still have not received proper responses, it is time to prepare and file your discovery motion. (Note: Some jurisdictions require informal conferences or calls with the court before filing a formal discovery motion, so be sure to review your local rules.) Use your deficiency letter as a guide, and be clear as to each item that you want the judge to order disclosed. Even if your jurisdiction does not require a proposed order, consider including one that clearly lays out all items that you want disclosed. Finally, before filing, challenge yourself as to the reasoning for each item that you request, and be honest with yourself about the strength of any arguments that opposing counsel asserted in response to your deficiency letter or during the meet and confer. Consider bouncing your arguments off colleagues as well. Finally, do not forget to include a request for attorney fees in the motion.

Conclusion

Discovery disputes are an inevitable and often frustrating part of every litigation attorney’s practice. However, by following these five tips, you can at least avoid having the process feel like a trip to the dentist.

Daniel T. Pesciotta is an associate at Hahn Loeser & Parks LLP in Cleveland, Ohio.

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