Chapter 8

• Jurisdiction: United States

Chapter 8

How to Create a Discovery Plan

Being busy does not always mean real work. The object of all work is production or accomplishment and to either of these ends there must be forethought, system, planning, intelligence and honest purpose, as well as perspiration. Seeming to do is not doing.

—Thomas A. Edison, inventor

Overview

This chapter provides my method for creating a discovery plan—perhaps the most important planning document for your high-risk, complex case. Why? Because most of the legal spend is incurred conducting discovery; many complex cases settle during or shortly after discovery (because of what was learned through discovery); and, if the case proceeds, the evidence gathered in discovery is the foundation for motions and trial.

Here’s another reason you need a good discovery plan: you can’t create an accurate litigation budget unless you have properly planned your discovery and anticipated your opponent’s discovery. Absent proper planning and execution, your team will suffer from the same problems as those experienced by the dysfunctional team discussed in the Introduction: A Dysfunctional Team.

Many discovery plans I have seen aren’t plans. They are just punch lists of obvious things to do—interrogatories, requests for documents, requests for admissions, names of witnesses to interview or depose, etc. These are lists, not plans. My method will help your team create a plan rather than a list of discovery action items. The plan is created through answers to five discovery-planning questions. The questions are designed to cause your team to think hard about what discovery to conduct, how best to complete it, and what discovery to expect from your opponent.

Below are the five questions. Answer them and you’ll know what to pursue in discovery and how to pursue that planned discovery. (Each question is discussed in a moment.)

1. What are the constructive proof points we must obtain to meet our burden of proof, and what are the destructive proof points we must obtain to deconstruct the opponent’s case?

2. What proof points (constructive and destructive) do we already know and can prove?

3. What proof points (constructive and destructive) don’t we know and can’t prove?

4. As to proof points we don’t know and can’t prove, which proof points can we obtain through informal discovery, as opposed to formal discovery?

5. As to unknown proof points, what specific informal and formal investigation tools should we use and how should we use those tools?

Once your team answers these questions, switch sides and pretend you’re members of the opponent’s team. Answer the five questions as your opponent would. Your discovery plan must include the discovery both sides will conduct. In The Art of War, Sun Tzu wrote: “If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.” This is so true for high-risk, complex cases. If you focus only on the discovery your team will conduct and don’t focus on your opponent’s discovery, you will have gaps in your plan, your litigation budget will be inaccurate, and you will be unprepared to address your opponent’s discovery.

Definitions

Here are some important definitions that you’ll need for this chapter and other chapters that follow:

• Proof point. A proof point is any document or an excerpt from a document or fact elicited through witness testimony that proves an element (or an aspect of an element) of any disputed key issue.

• Constructive proof point. A constructive proof point is used to build evidence to meet the burden of proof on any key issue. In general, constructive proof points are elicited through the direct examination of friendly witnesses. (Adverse witnesses questioned on cross-examination will fight to concede even undisputed constructive proof points.)

• Destructive proof point. A destructive proof point is used to counter a corresponding constructive proof point or to impeach or impugn the credibility of an adverse witness. Destructive proof points are established through cross-examination of adverse witnesses.

• Informal discovery. Informal discovery is discovery conducted outside the scope of what is allowed under the rules of civil procedure and without notice to your opponent—like witness interviews, Internet searches, and information from public sources.

• Formal discovery. Formal discovery is discovery conducted with notice to your opponent and under the rules of civil procedure—like interrogatories, requests for documents, requests for admissions, and depositions.

The Construction/Deconstruction Business of Litigation

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