Great Article on Discovery

While I have often expressed my opinions regarding how to conduct discovery, the article written by Donna Welch, Esq., and Kaitlin L. Coverstone of Kirkland and Ellis LP in Chicago Illinois presents a clearer and more concise blueprint for planning and executing discovery.


Some notable quotes:

Have a strategy. Rather than sending a huge number of overly broad requests and deciding later what’s relevant, think ahead about what facts will help you prove your case. If you are the plaintiff, consider what elements you need to prove for each claim and what kinds of documents would help establish those elements. If you are the defendant, approach discovery with your affirmative defenses or counterclaims already in mind. Tailored requests are more defensible if challenged, and can also avoid subjecting your client to equally broad requests. Courts are not fans of scorched-earth discovery with no reason, so be prepared to defend what you think you need and why.

  • Adjust the scope of your requests to the questions at issue. If a particular issue has been resolved and is now off the table, (i.e., through a decision on a Rule 12 motion), make sure the scope of your discovery requests reflects the narrowed scope of the case.
  • Send clear requests. In addition to being tailored, your requests need to be clear. Requests that include vague terminology, multiple subparts, or a series of “and/or” clauses can be unintelligible and make it difficult for you (or the judge) to police compliance. Sometimes it is better to split up a complicated request into multiple separate requests for the sake of clarity. If your opponent objects that requests are vague or overbroad, meet and confer and demand that they explain why. Then, consider whether you can reframe the requests to address the issue without sacrificing what you need
  • Make your objections clear and specific. The need for thoughtfulness also applies to your objections and responses. With recent changes to Federal Rule of Civil Procedure 34, an objection must state whether any responsive materials are being withheld on the basis of that objection. That means that your objections need to be intelligible and defensible. Don’t object to every request as “vague” or “overly burdensome”—courts hate it and you will live by the same objections.
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3 Responses

  1. File Chap. 13 and then do a Rule 2004 Examination of all parties even remotely connected to the loan. The beauty of the Rule 2004 Exam is that it can be so broad as to even constitute “a fishing expedition,” which regular discovery cannot. Scribd has some great samples. I’m putting one together now, & have some killer questions & admissions. Will share when done.

  2. Brian Tracy — agree. Judges just believe the “banks” and do not grant discovery. But, here is the problem too – even if you get SOME discovery, no will give you want you need. They will do everything possible to avoid it.

  3. Neil ,

    How do you get a judge to enforce discovery? Plaintiffs sidestep facts and proof in their filings and simply do not answer discovery… Judges do not care…

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