Discovery is often intimidating for litigators, especially young lawyers. The key to discovery is to stay ahead of the deadlines. Here are five simple tips to keep your discovery organized and moving.
1. Create a Realistic Schedule and Stick to It
First, you must create a realistic timeline for discovery. The timeline should contemplate initial written discovery to the parties and subpoenas for third parties. In some cases, you may need to get releases for medical and bank records from your clients in anticipation of your document production. The schedule then needs to address the receipt and digestion of discovery responses prior to deposing factual and expert witnesses. Obviously, the schedule should be added to your calendar and tickler system. Finally, it needs to contemplate the needs and restraints of your client. Confer with your client before finalizing a schedule to address any time restraints such as vacation or surgery and their limitations such as staff, who will help you gather the documents.
2. Start Discovery as Soon As Possible
First, invest the time in creating a road map for the information and documents you will need to prove the essential elements of your claims or for your defenses. Advise your client about the discovery, either prior to filing suit or upon receipt of a complaint. They need to begin collecting documents immediately as well as safeguarding electronic files.
3. Date, Source, and Stamp Each Delivery of Documents
You will receive documents from your client, third parties, and other parties via email, mail, hand-delivery in your office, flash drive, and/or CDs/DVDs. Make sure you identify the source and date of each delivery. If the pages are not Bates-stamped, begin that process. Keep records of the physical location of CDs and flash drives if they are not kept in the file.
4. Prepare Privilege Log
Develop a protocol as to how to conduct a review of privileged documents. When a client sends you documents, these documents may contain notes and comments meant for the attorney. They also may contain other attorney-client or work product that should not be produced as they are privileged documents. It is important to assign one or more people to conduct regular privilege reviews of your clients’ documents when they come in. It is also important to make sure that everyone on the team, from legal assistants to paralegals and associates understand how to keep track of withheld attorney-client and work product materials.
5. Understand the New Federal Rules
Last year, the federal rules regarding discovery have changed significantly. You need to understand how the changes (and any future changes) affect the breadth and scope of your discovery. Know the rules!