Fundamental Overview

AuthorAshley S. Lipson
For most cases, discovery isn’t merely a
component of the litigation, it is the litigation.
Chapter 1
Fundamental Overview
§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
1-21 Fundamental Overview §1.20
1 Modrow v. JP Foodservice, Inc., 656 N.W.2d 389 (2003). A party has no obligation to conduct discovery.
1.1 See Arthur M. Miller, The Adversary System: Dinosaur or Phoenix, 69 Minn. L. Rev. (1984). The author’s statement is as true today as it
has been since the dawn of discovery: “It is unrealistic to expect lawyers to act in a cooperative spirit or adhere to the Marquis of Queens-
berry rules on what has become the central battlefield of modern litigation.” See also Timothy Wilson, A Mandate For Failure: The Sedona
Cooperation Proclamation and Modern Discovery Under the Federal Rules of Civil Procedure, 35 U. LaVerne L.Rev. 165 (2013).
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 considered throughout this book.
§1.10 Introduction
This comprehensive treatise is designed for use by all
civil practitioners, state and federal, plaintiff and defen-
dant, young and old. The strategies, checklists, forms,
examples, and extensive annotations are designed to pro-
vide both specific information and general strategies to
guide litigants through the often complex and time-con-
suming process that we commonly label “discovery.”
In the overall scheme of things, litigation is discov-
ery. 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. Expe-
rienced 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 pro-
cess. Skillfully drafted instruments are designed to avoid
litigation, to be sure; but they must, nevertheless, be tai-
lored 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 disposed
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.1.1 And despite every call for civility
and gentility, I have yet to witness or conduct discovery
that has been totally free from some form of coercion
or confrontation. Conflict can only be avoided by those
willing to lay down and surrender their cases or accept
as complete, the minimal crumbs that skillful attor-
neys habitually toss out during preliminary 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 advocacy, are
suddenly going to become dormant during the most crit-
ical phases of the litigation process.3 That simply will not
happen. Indeed, even our canons of ethics would con-
demn 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 accomplished little
more than providing new battlefields for filing hostile
motions.5 And, in keeping with past performance, in all
probability, future discovery rules are going to make
matters more, not less, contentious.6
Politeness, professionalism and common courtesy are,
of course, a must. But our system is adversarial, nevertheless,
so say what you will about civility. “In the end,” Thomas
Hobbes said, “clubs are trump.” Defeat or be defeated.
§1.20 Contents
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