The Discovery PlanAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 75, No. 12 (DECEMBER 1989), pp. 76, 78-79Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760805 .

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Litigation

The Discovery Plan BY JAMES W. McELHANEY

Angus was not just annoyed with his new associate?he was hot. "Mi

chael," he said, "trial preparation doesn't mean taking depositions pointlessly. Before you do anything else, read the file and start working on your discovery plan."

"Discovery plan?" asked Mi chael.

"Discovery plan," said Angus. "If you just start taking depositions when you get a new case, you will be like all those other litigators' who spend years in mindless discovery. They fight for weeks over the answers to hundreds of useless interrogatories. They take depositions of people who would never testify if the case went to trial. They order up warehouses full of irrelevant documents and have their junior associates spend months sifting through them.

"Some of them, do it on pur pose," Angus continued. "They are

trying to crush their opponents with paper, bore them to death with ted ium. But unfortunately, even more

lawyers flail around in pretrial prep aration simply because they never have a discovery plan."

The truth is, Angus is right. But the problem is, how do you put to gether a discovery plan that will make trial preparation efficient? The stum bling block seems obvious. Every case is different. How can a plan devised for a products liability case have any thing to do with an antitrust case or a corporate contract dispute?

The answer is simple. Start with a basic framework and modify it to fit the case you are working on. And one of the best basic frameworks is the one hammered out by David M. Malone of Washington, D.C., and Robert F. Hanley of Denver. Of course, it does not fit every case. It is designed with business litigation in mind. But it makes a lot of sense, and it is remarkably flexible.

James W. McElhaney, the Jo seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law, is a senior editor and col umnist for Litigation, the journal of the ABA Section of Litigation.

Before we start, time out for an

important warning. This is a discov ery plan. And discovery is not the best way to learn the basic facts of a case. In fact, it is probably the most expen sive and inefficient way to gather in formation. The way to learn the facts is through informal investigation? calling and digging and writing and talking?but that is a topic for an other day.

Look at it this way. If you pre pare a case properly, you actually should not discover very much infor mation with discovery. You should know most of it already. Instead, use

discovery to nail down information so it will shift and change as little as

possible before trial. And now, back to the frame

work. It has four basic steps: Written interrogatories. Document production. Depositions. Requests for admissions.

The order can be changed, but at a price. It is an important part of the plan. And pay particular attention to what each step is designed to do. If you use discovery this way, it will minimize any potential troubles.

Use written interrogatories to find out whose depositions you want to take and where the documents you

want are located.

Use documents for information, to refine the list of depositions you will take and to help figure out what questions to ask.

Use depositions to nail down what you have learned, to get some

important admissions and to evalu ate the witnesses.

Use requests for admissions to fill in any gaps.

Each of these steps is worth some discussion.

Start with written interrogato ries. They can give you names, num

bers, addresses, titles, locations and other bits of solid information. Use what you learn to help decide which depositions to take.

A lot of lawyers disagree. They hate interrogatories and hate even more the idea of starting discovery with a list of questions that will ob viously be answered by the lawyers for the other side. They say interro gatories are an invitation to a long fight about what is a proper question, how many questions you can ask and

JOHN FIGLER

76 ABA JOURNAL / DECEMBER 1989

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whether an answer is responsive to the question. "Interrogatories?" they say. "No thanks."

And if you write long interroga tories or a lot of interrogatories or interrogatories that call for in terpretational opinions or admis sions, the lawyers who hate them are

right. They will cause you nothing but trouble.

But Timothy C. Klenk is a cham pion of using interrogatories the right way. He explained his system in "Us ing and Abusing Interrogatories,"

Litigation, Vol. 11, No. 2, page 25 (Winter 1985).

Klenk's list of uses for interro gatories includes identifying docu ments, people who know the facts, financial information such as income and sales, and information about ex

perts. (You should use depositions for information from experts.)

Klenk warns against using inter rogatories for information about con versations, questions that call for

Litigation

explanations, complex transactions or events, or identifying trial wit nesses (assuming the decision has not yet been made at this stage).

The second step is the request for documents. And now for a genuinely valuable tip. Except in the simplest cases, do not combine a request for the production of documents with a

deposition. Why not? Because you will waste time and

let important points go by. As David Malone says, thousands of deposi tions are conducted each year in which the questioner starts with a

pile of documents on the left side of the table and is finished when all the documents have been moved to the right side of the table. The docu ments have been produced on the very morning of the deposition. The questioner often only verifies that the document was written by the depo nent, is on the deponent's letterhead and is a record kept in the ordinary

course of business. Page by page, the painful progression proceeds.

Don't do it that way. Get the doc uments well before the deposition so you will have time to study them first.

And another point. Except in unusual cases, it is silly to use depo sition time to verify that the records and other documents came from the opponent and qualify as business rec ords. As Malone says, if you frame your request properly, your oppo nent will automatically be admitting that the documents are authentic business records just by producing them. Later you can ask your oppo nent for any other documents that pertain to the case.

After you have gone over the documents, you are ready to begin taking depositions.

Where do you start, the top or the bottom?with the chief execu tive or the people on the assembly line? Bob Hanley likes to start at the top, and to stop as soon as he has

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> _

7

everything he needs. If you start at L > the bottom, the logic of your choice

forces you to keep on taking deposi tions until you reach the top.

^ But there are times when you want to start at the bottom. If you represent the plaintiff in a medical malpractice case, for example, you

r * may want to save the doctor's depo sition for last?after all the nurses,

^ interns, and residents have had a chance to point to the center of the ^ circle (and away from themselves) to explain what went wrong. s Next come requests for admis

. v sions under Rule 36 of the Federal Rules of Civil Procedure. Admissions

^ are wonderfully flexible: Requests are served on parties, ^ not witnesses. They can be served any time,

* and there is no limit on the number ^ of requests you can make.

If th?y are not denied, they are admitted. ">>

If the other party denies the re

quest, you can recover the cost of proving it under Rule 37(c) of the Federal Rules of Civil Procedure.

While admissions are for the present case only, they are not merely admissible, but binding on the party who makes them.

Everyone knows that requests for admissions are a good way to clear away clutter from a case. Say you want to introduce a letter sent to your opponent by someone who is not a

party or a witness in the case. You can use a request for an admission to establish its authenticity.

But it does not stop there. Requests for admissions can fill

some holes left in your case. When you go back through dis

covery, the question you forgot in an

early deposition will loom larger than before. Places where the defendant's witness weaseled will suddenly jump out at you. Something you learn in the last deposition makes you want to go back and talk to one of the first

witnesses again. But instead of taking supple

mentary depositions, you can use re quests for admissions. You know how you want those additional questions answered. Answer them that way in your request for admissions.

There are good reasons for mak ing your requests simple and direct.

First, you want to give your op ponent as little leeway as possible. The more argumentative your re quest, the more opportunity he has to escape. Just to make sure he does not, couple your request for admis sions with interrogatories he must answer if he denies the request. Then if the request is denied, at least you have some idea of what you need and where to look.

Second, every time you write a request for an admission, you are not writing just for your opponent?you are writing also for the jury, and you want them to understand what your opponent has admitted.

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