Don’t Serve Discovery Unless You’re Willing to Go to the Mat For A Response

One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve.  This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do.  I think also that, as a young associate, I was always looking for ways to maximized billing opportunities.  Actual strategy rarely entered the equation.

I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.”  Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying.  He was absolutely right.

My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun.  As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).

I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter.  Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client.  There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result.  So every task, not just discovery, needs to be calculated to advance the ball.

On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery.  In fact, quite the opposite is often true.  An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.

My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client.  If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case.  I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense.  The same holds true, only opposite, if I’m representing a defendant.  This is elementary, but I’ve seen a lot of discovery (and written some  over the years) that strayed pretty far off topic. 

If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response.  Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it.  If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?

This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience.  By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com. View all posts by Alex Craigie

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