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Litigation Journal

Summer 2021: Crisis

Painless Methods to Extract Documents from Clients

Naomi Berry


  • Discovery can be quite trying for all involved.
  • The sooner you can get the requests on your client’s radar, the more time you and your client will have to work on it.
  • Pick up the phone.
Painless Methods to Extract Documents from Clients AungTun

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If you’re reading this, you’re probably not a dentist, but I bet you sometimes feel like you pull teeth for a living. There are many reasons clients are slow and hesitant to turn over the documents you need for discovery. Some clients want to cherry-pick what they think are the best ones for their version of the story and just give you those. Others think everything is confidential and proprietary, so they shouldn’t have to turn it over. Especially when you are dealing with businesspeople who don’t have a lot of litigation experience, discovery can be quite trying for all involved.

So how can you make the process less painful (without laughing gas)?

Start early. It is exceedingly rare that I receive or serve a discovery response on or before the original due date. But the sooner you can get the requests on your client’s radar, the more time you and your client will have to work on it. You don’t want every discovery request to become a fire drill for the client, and you don’t want to find out on day 29 that the people you need to provide the responses are on vacation or tied up with another big project. A fire drill will not only annoy the client; it will increase the chances of making mistakes.

Pick up the phone! Sure, if you just need the client to turn over a couple of easily accessible contracts, you can send an email. But if you have e-discovery or if any of the requests are likely to elicit pushback from the client, schedule a call. You will get much farther much faster if you can explain why the requested documents are relevant and address concerns in real time. Maybe you have already made a reciprocal request from the other side, so you can’t object in good faith. Maybe you want to rely on the documents to prove your own case, so you can’t withhold them in discovery. Have the conversation early—don’t wait for the motion to compel.

It’s also much easier to empathize over the phone. Feel the client’s pain about having to devote resources to digging up old emails even though the client did nothing wrong and shouldn’t be in litigation. Reassure clients about the confidentiality agreement you already have in place and the ramifications if the other side violates it. Share some war stories about the judge so they better understand the potential consequences of not complying with the discovery requests. Explain how turning over these documents may help the other side realize how strong your case is to get settlement talks going sooner rather than later. Brainstorm ways to make the process more efficient and take some of the burden off the client.

Talking on the phone also gives the client room to ask “stupid” questions the client didn’t want to put in email. Or to reveal questionable things that no one wants in writing. There is also the possibility that during this call, you may learn something from the client that would cause you to raise an objection or change your position. (Or settle!) Don’t miss out on the opportunity to build your client’s trust in your abilities by showing the client the calculations behind your recommendations and your willingness to adapt to changing circumstances.

Get to know your client’s organization. Is there an admin or information technology (IT) person who will handle the actual hunting and gathering? Befriend that person. Introduce his or her IT counterpart at your organization (or vendor) who speaks the language. Not only will you get your answers or documents faster, you may be able to take your main client contacts out of the loop and spare them some time and emails. If your client does not have its own IT staff, consider bringing in an outside vendor sooner rather than later. Nothing is more frustrating than having to ask your client to redo the production because the search yielded emails without attachments or did not net all of the responsive documents. It may end up being less expensive and stressful for your client to enlist a vendor than to pay you to engage in extensive motion practice or multiple rounds of review and production.

Putting in the time to explain the process and get to know your client’s systems will prove beneficial for future cases and make you an invaluable member of the litigation team. Maybe next time, the client will take your advice before extraction is even necessary.