Black Hat Series: Discovery Do’s and Don’ts (Part 1)

This content was originally published as content for a CLE given for the Institute of Continuing Legal Education in Georgia, entitled Litigating the Plaintiff's Employment Law Case on September 23, 2016. This is an excerpt from that material.

I have a confession to make: I used to be defense counsel with Big Law. I represented numerous corporate entities during my career, many of whom were virtually indistinguishable, and most of whom had little interest in meaningful discovery.

But several years ago, I had an epiphany. What if I could take everything I learned working for Big Law, couple it with everything I learned working in the software space (discovery review software marketed to and sold almost exclusively to Big Law), and actually help small, plaintiff-friendly attorneys on cases of all sizes. This move renewed my passion for the law (all too common a casualty of life in Big Law), and now I get to work with really smart lawyers who know their case backward and forward and who attack discovery with an actual purpose - to collect and understand evidence, whatever the source - rather than just playing “defend the goal” (or even worse “hide the ball”) all day.

Having worked both sides of the proverbial “v”, I have a unique perspective on problems that are rampant in the discovery process. In this article, I have collected my (somewhat tongue-in-cheek) observations for your edification. Read these ten “do’s and don’ts” and up your discovery game tenfold.

1. Don’t misuse the term “ESI.”

Like ordering an unsweet tea at a diner in Atlanta, some things just make us stick out – and not in a good way. But unlike your choice of beverage, these actions can mark you as a victim for the more discovery-savvy.

For example, the unabashed abuse of the term ESI is rampant on both sides of the Bar. I have heard ESI used as a verb, a noun and even an adjective (and once, memorably, as a gerund, which was truly an eye-roll worthy experience). This just makes you sound like an amateur. ESI is short for “electronically stored information.” Now think about how little sense it makes for a lawyer to say “we don’t need to do a lot of this ESI” in response to your request for electronic discovery. This makes you stick out like a tourist in Time Square.

And if you hear this malapropism from the other side, proceed with caution. Chances are high they do not know how to “do” this ESI - and this can easily result in you missing evidence you need.

2. Don’t use boilerplate.

In my wonderful new life as a white hat, one complaint I hear a lot is the boilerplate objections that Big Law sends in response to discovery. To be sure, there is a lot of truth in this complaint. But if we were to really track down the problem, it could be best stated thusly: “They respond to boilerplate with boilerplate, and then complain about your boilerplate.” And either side might be able to make that allegation.

So let’s just get this out of the way: if you are using a lot of boilerplate in your discovery requests, you might want to think again. While there is obviously a need for efficiency, boilerplate begets boilerplate and neither side is right—an eye for an eye leaves the whole world blind, right? When you send form discovery requests, not only do you do your client a disservice, you open the door to form responses. Form responses are worthless.

If you do need to reuse discovery requests, which makes some sense, do your best to mask the signs of assembly line discovery. Your thoughtful, detailed and bespoke discovery request won’t lend itself to a form response very easily and may even give you more stable footing down the road (not to mention the fact keeps you clear of an allegation that you willfully violated 26(g)).

Boilerplate discovery is Big Law’s game; do not play it.

3. Do know the Rules – but don’t waste time lecturing the other side about them in your Requests.

The next time you get a discovery request, see if opposing counsel wastes an inordinate number of pages explaining what the Rules require. This is usually an attempt to mask their own discovery shortcomings, and (here’s a Big Law Secret!) I find it is often the byproduct of an instruction from some Firm Bigwig to “go propound some really tough eDiscovery requests.” At heart, this is just another boilerplate issue. The result is often nothing more than a lengthy dissertation about what is within the scope of the word “document,” despite the fact that the Rules, Advisory Comments, and case law throughout the United States should be more than adequate to define “document” for the purposes of discovery. (Although personally I’ve always thought it would be awfully fun to go watch a lawyer in court try to argue that “No, Your Honor, I did not think a text message was a document.” Good luck with that.)

The use of lengthy definition for a term like “document” is a warning signal that the propounding lawyer isn’t putting much thought into discovery. Even worse, they will think this definition is a substitute for a thoughtful discovery plan and request that will enable them to get what they need. Again, this plays to their advantage. Avoid overly broad catch-all terms in your discovery, and force counsel to do the same. You will give them fewer places to hide.

For more advice and observations, please check back soon. If you would like to discuss sooner, give us a call!

#discovery #ESI #FRCP