Discovery and Depositions

AuthorDeborah Edney
Business torts tend to travel in packs, with a variety of legal and factual
issues all competing for time and attention during the discovery process. A
typical business tort case will contain overlapping, and sometimes competing,
claims: fraud, misrepresentation, tortious interference, libel, unfair compe-
tition, civil RICO, and breach of contract all ghting for attention during
a limited discovery window. This often results in discovery that, though
similar to any other civil litigation, must be managed and coordinated in a
more thoughtful, precise manner. While you will ask for documents, pro-
pound requests for admission and interrogatories, and take depositions
as in any other case, the differences appear in the scope of the discovery—
more documents, more depositions (certainly more 30(b)(6) depositions),
and more complexity.
Because business tort discovery is not vastly different than other discov-
ery, this chapter will necessarily cover the basics of written discovery and
depositions that would apply in any case, but with a more specic focus
on how the business tort practitioner can navigate aspects of business tort
discovery that are different from other cases and emerge on the other side
of discovery more prepared for trial.
Discovery and Depositions
Deborah Edney
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In litigation one side of the equation is always somewhat obscured; you
don’t know what the opposing counsel is thinking, or planning, in terms
of its approach to discovery, other than through a short meeting required
by Rule 26.1 Because of this “unknown” it is sometimes difcult to follow
a predetermined plan in discovery. But, as Dwight D. Eisenhower pointed
out, “[i]n preparing for battle I have always found that plans are useless,
but planning is indispensable.”
Planning for discovery from the earliest moments of your case is not only
wise, but invaluable when you are in the thick of depositions and written
discovery. The amount of time dedicated to discovery is enormous, and
often more so in business tort cases with the variety of claims and facts
that need to be “discovered” and with monetary stakes that are often much
higher than in an average case.
Preparing a litigation discovery plan in advance is the best way to help
dene the scope and timing of discovery up front. A good discovery plan
will help ensure the most efcient and effective use of your time, and your
clients’ money, and will help to direct your efforts at the discovery most
likely to support your case.
Ultimately, a discovery plan is a living document that evolves over time
as you learn more about your case, the facts, and the claims and law at
issue. There is no right or wrong way to prepare a discovery plan and it
should be tailored to your specic case. The general steps for most business
tort cases will be similar, however, and are generally best determined by
preparing a document or binder that gives an outline of the main aspects
of the case, including:
1. A summary of the facts;
2. A chronology;
3. A list of the key players and potential witnesses;
1. The discussions in this chapter will be limited to the Federal Rules of Civil Procedure
as it is beyond the scope of this chapter to address the variety of rules that are encountered
in state courts throughout the country.
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