Fundamental Overview

• Author: Ashley S. Lipson
• Pages: 22-40

1-20

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

Please take a moment or two to review your Table

of Contents. You may see some structural features that

are specifically designed to assist your rapid access to