Cases are not "won" in the discovery phase, but they can be lost there. Litigation is often unsuccessful due to poor discovery planning, document mismanagement, and the failure to focus on strategic discovery objectives needed to support successful motion practice or to prevail at trial. However, formal discovery devices, when used strategically, properly regulate the flow and content of evidence and can shape the progress and outcome of a case. Almost invariably, it is the imprudent response to a deposition question or the failure to produce or discover key documents that can sidetrack a case and lead to poor results and increased costs.
In-house and outside counsel must work together to control the process and position each case for a successful resolution. Here are several broad guidelines to maximize the value of discovery while minimizing the risks:
1. Assess the case merits as early as possible and create the discovery plan: Knowing at the earliest possible stage what evidence is needed to prove each element of a claim enables a narrowly tailored internal document preservation and gathering memorandum and readies the company to comply with early disclosure obligations. The assessment should include the identification of key witnesses, critical relevant internal documents and a "wish list" of materials to seek from the other side. From this assessment a highly focused offensive discovery plan can be implemented. Think outside the box because informal discovery can yield extremely valuable results in the right case.
- 2. Implement the plan in a highly focused way: The key is knowing what is really needed and when and how to fight for it. Identify the key documents and depositions you must get from the other side and pursue those with vigor. Resist an opponent's discovery efforts strategically, being mindful of the business objectives of the client. However, do not create unnecessary motion practice, litigate the litigation unless such a tactic is legitimate and serves the client's goals or engage in antagonistic discovery practices with opposing counsel. Motion practice should be avoided unless it is consistent with obtaining key discovery or serving a strategic defensive need. Tip: It is rare that an interrogatory truly obtains "needed" information, but improper responses provided by your client can poison an entire case.
- 3. Review documents the right way: Depending on the size and scope of document productions in a given case, perform the review the right way the first time. If producing, review your own documents for responsiveness and privilege to ready them for production. At the same time, identify critically important documents, categorize them by topic, and even create key documents for witness preparation. When reviewing documents produced by the other side, make sure you are getting the materials that you need. If not, figure out why and seek a remedy.
- 4. Develop trial themes to prepare deponents and conduct depositions: As early as possible consider how key motions need to be framed or defended, or how a case will be presented to the ultimate trier of fact, and develop simple themes. Arm your witnesses with those themes, since they will inform how those witnesses will think about particular documents and how they will respond to important deposition questions. Conduct deposition preparation around the case themes and organize deposition questions with the themes in mind.
- 5. Evaluate and reevaluate as discovery progresses: Don't be wedded to the initial plan, as cases are seldom static. Evidence evolves and case needs change based on the shifting documentary landscape. Be nimble in adjusting the discovery plan to accommodate the specific needs of a case, depending on how evidence is developing or the particular procedural posture.
