Don’t Wait To Start Thinking About Litigation Discovery

The litigation discovery stage is where you get the goods to either make your case or defeat the other side’s case. It’s the time to gather evidence and place what you’ve guessed or think you know on the record. It’s not a time to shoot from the hip.

In criminal cases, the prosecutor is required to give the defense everything that might help the defendant avoid a guilty verdict. Civil cases are different in that no one has to turn over anything to the other side until it is specifically requested, and even then there might be resistance.

But how do you know what to ask for? Everything you request must be relevant to the claims or defenses as stated in the pleadings (complaint, affirmative defenses and any counterclaims) filed with the court. The pursuit of discovery is iterative, meaning you start with a few general requests and use the responses you receive to request more specific items in later rounds.

Before propounding discovery on the other side, take a hard look at the pleadings. For each paragraph in the complaint, brainstorm the evidence needed to prove or disprove the allegations. Do the same with affirmative defenses and counterclaims. There are different strokes for different folks, but I like to lead my litigation discovery with a request for admissions to get beyond the easy facts. I then prepare a request for production of documents based on the complaint or defenses, basically asking for all documents (or other things) the other side might use to support each statement I want to disprove. You can pair that request with a list of questions called a request for answers to interrogatories, asking for any arguments that might be used to support statements I want to disprove. (View and download samples and templates for these tools here.) Expect the other side to ignore or object to some of your discovery requests, so plan on moving the court to compel discovery a few weeks after the due date passes.

Oral depositions are the most fun, and oftentimes the most revealing. They’re also the most expensive, so you want to review everything else you’ve received to ensure you’re deposing only the most important witnesses on the most important disputed facts. All the other discovery tools can be completed by lawyers, even when you direct them to a specific witness. But that witness has to show up for live questioning when you set a deposition. And that can get kind of rowdy, like this one in a Texas case:

The thing is, you should be thinking about a litigation discovery strategy before you file your complaint or your answer. If a certain piece of evidence will help to prove your case or defend yourself, be sure to include a factual allegation in your pleading that makes that evidence relevant. If you don’t, a judge may deny your right to see it and your case may be damaged as a result.

Drop a comment below to share your litigation discovery tips.