Fundamental Overview

• Author: Ashley S. Lipson
• Pages: 23-44

For most cases, discovery isn’t merely a

component of the litigation, it is the litigation.

Chapter 1

Fundamental Overview

Table of Contents

§1.10 Introduction

§1.20 Contents

§1.30 Scope and Range

§1.40 Goals and Targets

§1.50 Boot Camp

§1.51 Step 1: Client Interrogation

§1.52 Step 2: Third Party Assistance [Lay and Expert]

§1.53 Step 3: Mandatory Disclosure

§1.54 Step 4: Judicially Approved Forms

§1.55 Step 5: Attorney-Initiated Discovery

§1.56 Step 6: The War Begins

§1.60 Universal Strategy

§1.61 Universal Orders

§1.62 The Discovery Plan (i.e., The Battle Plan)

§1.70 Stipulations

§1.80 The Forms That You Need

Form 1.1 Stipulations

Form 1.2 Stipulation and Order

Form 1.3 Sample Scheduling Order

§1.10 Guerrilla Discovery 1-2

1 Modrow v. JP Foodservice, Inc., 656 N.W.2d 389 (2003). A party has no obligation to conduct discovery.

2 Ironically, discovery rules were created and promulgated to increase, not decrease, civility. According to Prestridge v. City of

Petal, 841 So.2d 1048 (Miss. 2003), discovery rules are designed to prevent “trial by ambush.”

3 The Advisory Committee Notes on the 1983 Amendments to Rule 26 of the Federal Rules of Civil Procedure provide one of

many concerns about the hostility of the discovery process: “Concern about discovery abuse has led to widespread recognition

that there is a need for more aggressive judicial control and supervision (Citations omitted).”The amendments, however, have

increased not decreased the hostility. See Richard T. Seymour, The Shrinking Door to Discovery, Trial Magazine, (May 2001),

P.49, who correctly states: “To win under the new limits, you have to plan your case like a military campaign.”

4 According to the Code of Professional Responsibility of The American Bar Association, an attorney should represent his client

“zealously.” See Disciplinary Rule, DR 7-101.

5 See Rule 11 of the Federal Rules of Civil Procedure (Appendix I[A])and the accompanying Advisory Committee Comments.

See also Chapter 16.

6 Several discovery portions of the Federal Rules of Civil Procedure were significantly amended as of December 1, 2000.

Because that body of rules governs all federal discovery and serves as model for most states, the amendments will be consid-

ered throughout this book.

§1.10 Introduction

This comprehensive treatise is designed for use

by all civil practitioners, state and federal, plaintiff

and defendant, young and old. The strategies, check-

lists, forms, examples, and extensive annotations are

designed to provide both specific information and

general strategies to guide litigants through the often

complex and time-consuming process that we com-

monly label “discovery.”

In the overall scheme of things, litigation is

discovery. Whether or not a case settles, succeeds at

trial, or is dismissed prematurely, depends heavily

upon the success or failure of the respective discovery

campaigns. Experienced trial lawyers already know

this, but transactional attorneys should also be aware

that in today’s litigious environment, discovery is a

force to be reckoned with and anticipated, even while

providing counsel for those matters once considered

unrelated to the litigation process. Skillfully drafted

instruments are designed to avoid litigation, to be

sure; but they must, nevertheless, be tailored to deal

with the litigation contingency. And with litigation,

of course, comes discovery. This continuing prospect

of discovery requires that non-litigation clients be

adequately counseled about the manner in which their

information should be generated, retained and dis-

posed of. Thus, the subject of Discovery should be of

interest to all practitioners. And even though there is

no “legal” obligation to conduct discovery,1 litigating

all but the simplest matters without doing so is next

to unthinkable.

Simply put, discovery is a compulsory process

wherein litigants are forced, by court rules and orders,

to hand over private information to people whom they

do not like. It will always be a contentious process for

that reason alone. And despite every call for civility

and gentility, I have yet to witness or conduct dis-

covery that has been totally free from some form of

coercion or confrontation. Conflict can only be avoid-

ed by those willing to lay down and surrender their

cases or accept as complete, the minimal crumbs that

skillful attorneys habitually toss out during prelimi-

nary skirmishes. Discovery has been and always will

be a quarrelsome undertaking. The judge-monitored

courtroom skirmishes that we call trial are often mild

by comparison.2

Historically, the rules drafters have periodically

attempted to moderate the conflicts that are inherent

in the discovery process. They are, however, naive to

think that attorneys, who have been both trained in law

school and rewarded in practice for aggressive advo-

cacy, are suddenly going to become dormant during

the most critical phases of the litigation process.3 That

simply will not happen. Indeed, even our canons of

ethics would condemn casual representation.4

As a general observation, the attempts to patch

and fix the system and get rid of its antagonism

through rules amendments have had a reverse effect.

New rules designed to curb the hostility have accom-

plished little more than providing new battlefields for

filing hostile motions.5 And, in keeping with past per-

formance, in all probability, future discovery rules are

going to make matters more, not less, contentious.6

Politeness, professionalism and common courte-

sy are, of course, a must. But our system is adversar-

ial, nevertheless, so say what you will about civility.

“In the end,” Thomas Hobbes said, “clubs are trump.”

Defeat or be defeated.