Learning to Love, or at Least Enjoy, Document Reviews
Drawing on her practice as a commercial litigator and an environmental lawyer, Kole provides real-world insights in analyzing the overall purpose of discovery and the specifics of drafting and responding to written discovery requests. Many if not most lawyers view written discovery and the document-review process as a necessary evil of civil litigation. Kole’s book presents a refreshing perspective on discovery in the modern age of civil litigation.
Before turning to the particulars of discovery, Kole dedicates the first chapter—entitled “I Love Document Reviews”—to providing readers with a deeper understanding of discovery generally and document reviews particularly. As the title suggests, Kole conveys her “love” of reviewing documents in this chapter, which is contrary to most young lawyers’ perspectives of document review. Young lawyers often loathe the prospect of document review, particularly in spending endless hours reviewing the extensive documentary records created by clients’ day-to-day operations.
Diving into document reviews, Kole describes how “getting your hands dirty,” by physically reviewing the documents at issue in litigation, is a necessary, and yes, rewarding aspect of litigation. (As both the title and the preface make clear, the book is about “PAPER discovery.”) Kole notes that a lawyer cannot uncover a “smoking gun” in a case without actually reviewing the documents provided by the client or produced by the opposing party. Among the tips for enjoying document reviews, Kole recommends immersing yourself in the case and focusing on the personalities involved; importantly, she notes that lawyers cannot fully understand their client or the pertinent facts of the case without reviewing the documentary evidence that will be the foundation of the litigation.
Drafting and Responding to Written Discovery Requests
In reviewing written discovery, several themes emerge throughout Kole’s book that are generally applicable throughout the discovery process. Adhering to these principles can help the discovery process run more smoothly and help any litigator avoid the many inherent pitfalls in discovery.
Kole begins her description of the written discovery process by directing readers to review the discovery rules applicable to their cases. One of the main themes is for litigators to read and understand relevant civil rules with respect to discovery as necessary for their success. As a corollary to this rule, it also is important for all counsel to establish the ground rules for discovery in each case, including explicitly following the governing discovery rules, modifying them, or otherwise agreeing upon additional procedures for completing discovery.
Turning her attention to discovery requests, Kole emphasizes that successful discovery requires that the requesting party make clear requests designed to uncover documents necessary to build the party’s case in the litigation. As lawyers, we all need to know exactly what to ask for with our discovery requests. Litigators must understand their clients, the relevant issues in the litigation, the main actors and witnesses, and the opposing party’s position.
Chasing Paper also attempts to debunk the myth that parties must insert every conceivable objection to discovery into their written responses to discovery requests to preserve those objections. For example, the rules of many federal and state courts have extensive provisions governing discovery that do not need to be repeated in written discovery as objections. Although brevity is often anathema to civil litigation, Kole urges litigators to eschew verbose, redundant, and unnecessary objections. For those who question the value of such advice and adhere to the “kitchen sink” approach to objections, Kole offers several examples of sanctions imposed against parties or their counsel for frivolous or bad-faith objections.
Beyond Written Discovery Requests
Kole dedicates much of her book to explaining the nuts and bolts of discovery. Litigators should be mindful of these observations, regardless of how long they have practiced. From reviewing documents and relying on support staff to moving to compel or for a protective order, Kole’s analysis and examples provide helpful advice about properly completing the discovery process. The numerous checklists and dos and don’ts provide a road map that every litigator should keep in mind.
Finally, and most importantly, Kole repeatedly raises the specter of ethical obligations and the potential for violations of these rules. Highlighting several recent examples of high-profile ethical lapses, Kole underscores the importance of lawyers abiding by their ethical obligations. As noted, even junior lawyers, often operating under the pressures inherent in firm practice, must ensure that they discharge their ethical obligations throughout the course of discovery. All litigators must be mindful that it is better to produce “bad” documents than it is to face the court on a spoliation claim or to explain to their client why the court has imposed monetary or even more draconian sanctions.
In sum, Chasing Paper is an excellent overview of the discovery process that should be a part of every litigator’s library. Regardless of your tenure as a lawyer, Kole’s book provides litigators with helpful and key information regarding the discovery process and is a breath of fresh air in a usually musky “discovery” warehouse.
Justin L. Heather is an editor of The Young Advocate and is a litigation associate in the Chicago, Illinois, office of Skadden, Arps, Slate, Meagher & Flom LLP.