Management of the discovery process: Taming the beast; training your bird dog

Collins, Lewis F Jr

I.

INTRODUCTION

Any lawyer can manage the discovery process. all he or she must do is decide what discovery to undertake and what to forego. Easier said than done. The decisions made with regard to this crucial phase of litigation will have far-reaching consequences. Decide to forego a witness' deposition because the witness is only peripheral, and that same witness shows up at trial with damaging testimony that forces an adverse verdict or a costly settlement offer in an amount that was never contemplated. Take every deposition of any witness listed by the Plaintiff, however, and the defense winds up spending more money than the case is possibly worth. This article will seek to explore this quandary by identifying the problem, analyzing the risks, and finding costeffective (and imaginative) ways of managing the discovery process. II.

THE PROBLEM: COST

Discovery is the most cost-intensive part of litigation. Any claims professional, corporate counsel or litigator can acknowledge this truism without much thought. According to Guy A. Zoghby, Senior Vice President and General Counsel of PPG Industries, a producer of coatings and chemicals, the evolving character of the litigation system is the cost driver:

It has become so discovery-intensive.... People file a lawsuit, then hope to find a basis for it. That's why you spend so much time and money in the pretrial stages. Motion practice and discovery are where dollars are spent, not at the trial itself.

. . . I'm convinced that at some point we'll have to start thinking outside the box about the whole process of litigation.1

Judge Gerald L. Goettell has stated as well that "[d]iscovery was intended to be a domesticated bird dog to help flush out evidence. It has become, instead, a voracious wolf roaming the countryside, eating everything in sight."2 Not everyone agrees with the notion that discovery is excessively expensive. Some argue that the cost of discovery must be viewed together with the overall litigation expense: the "cost" of settlement/verdict included. They point out that when the "bottom line" of litigation is considered, discovery is not a costly process. In other words, if discovery allows the defendant to undercut a claim of the plaintiff, resulting in a defense verdict or settlement in an amount far below what was demanded, then the "true" cost of discovery must be weighed against the total cost involved in a claim. George Ragland, Jr., in his book, Discovery Before the Trial, observed that there is no better way to prevent surprise than through discovery. He referred to it as a "dress-rehearsal before the trial."3

This issue was debated in Texas as part of that state's proposed overhaul of discovery rules. The ensuing debate was captured in an article from The Texas Lawyer,4 where Charles F. Herring, Jr. observed, "I think most litigators would agree that the bulk of lawsuit cost and expenses relates to pretrial discovery."5 However, in response, Casey Dobson noted that "[d]iscovery is the tool lawyers use to convince the opposing side that their desired outcome is in enough doubt that compromise is justified .... Any system that arbitrarily limits discovery is going to increase both the number of trials and the length of those trials."6

In an effort to deal with these problems on the national level, the United States Congress in 1990 passed the Civil Justice Reform Act ("CJRA"). Several federal district courts, in response to the mandates of this act, have undertaken studies of the costs of litigation through the formation of task forces. The Western District of Missouri's advisory group noted that the great majority of transaction costs were incurred through discovery and not during trial.7 This group concluded that the answer lay in limited discovery, coupled with alternative dispute resolution. Their conclusion was supported by the premise that the goal of ADR is not merely to settle cases, but to resolve cases as early as possible in order to avoid substantial discovery costs.

The two sides of this debate agree that discovery is costly; yet they disagree on both the overall effect these costs impose on the litigation and the "solution" to this problem. Clients are concerned because of the obvious impact on their balance sheet. Lawyers are concerned because they believe in the adversary system and wish to preserve the discovery process as the best method to determine the "facts" of the controversy. Judges, on the other hand, wish to remove the delays and costs associated with the discovery process.

A Louis Harris poll was conducted to examine this issue.8 The participants included: plaintiffs' lawyers, defense counsel, and corporate counsel from around the country. The poll found "strong support for limiting the number of interrogatories and depositions in certain types of cases, establishing a set of standing orders on discovery that instruct the bar how to proceed, and granting judges the discretion to impose some discovery costs on the requesting party."9 There was very little disagreement on the "key" issues. When asked: "What is the one, most serious criticism you have of the process of civil litigation in the federal courts today?" the top three reasons that emerged were:

All three segments of the legal community were thus in agreement. So much for the problem. But what of the solution?

III.

CREATIVE AND COST-EFFECTIVE SOLUTIONS

If a lawyer is seeking the solution, that lawyer is out of luck. There is no one solution. There are a number of different techniques that can be utilized, however, in an effort to control the "beast" and train it to act like a "bird dog." Which solution is best for a specific case depends (now here comes the "lawyerly" answer) on the facts of each case. To navigate this difficult field (to train the bird dog to point at that pheasant), there must first be a plan.

A. The Discovery Plan

The discovery plan is the single most important "tool" to make that dog hunt. Without the plan, any training will get out of hand and the "beast" will remain just that . . . an out-of-control animal. Discovery plans are not new; they have been around for years. Every major corporation or insurance company involved in litigation has its own version of a plan. The beauty of the plan is not in its form or structure, it is in the process. The discovery plan forces the client and the lawyer to examine the goals and objectives to be achieved by the litigation and fashion a framework to achieve those goals and objectives early in the litigation. The key to retraining the beast is not the plan but the process of developing that plan - the process of thinking the case through at the start of discovery, and not ad hoc as discovery progresses.

The development of a plan does two things: it frees the lawyer to be creative in achieving the goals established by a mutual decision-making process, and it constrains the discovery process by requiring counsel to determine whether the proposed discovery "fits" the plan and "coincides" with objectives for concluding the litigation. This process parrallels the hunter who keeps his bird dog on its leash as the pair make their way to the field and then unleashes the trained animal to find the hiding spot for that covey. If all goes according to "plan," roast pheasant is the evening entree.

Trial strategy expert James W. McElhaney has stated that "[m]ore lawyers flail around in pretrial preparation simply because they never have a discovery plan."" He observes that any discovery plan must contemplate and utilize the four basic discovery tools: written interrogatories, document production, depositions, and requests for admissions. However, the use of these tools should be surgical, not shotgun.

1. Interrogatories

Written interrogatories should seek only information that will identify documents and that will reveal the names and addresses of people who know the facts, financial information such as income and sales, and information about experts. Attempting to use this tool for other purposes is generally a waste of time and money. "Form" interrogatories should be used with caution and never in "boilerplate" fashion.

2. Requests for Production

Often, counsel seek to obtain documents by combining a request for production with a deposition notice. Professor McElhaney cautions against this: "[b]ecause you will waste time and let important points go by.... Get the documents well before the deposition so you will have time to study them first."12

3. Requests for Admission

Requests for admission, an often under-utilized discovery tool, may be the most cost-effective method of establishing the key facts necessary to defeat claims or prove defenses. Quite simply, they are a flexible, inexpensive method of proof. The rules provide that they can be served on parties at any time, without limit. If the opposing party fails to admit a matter sought, its opponent can recover the cost (including attorney's fees) of proving the denial of the admission. At trial, the responses are not merely admissible; they are binding on the party who answers. "Requests for admissions can fill some holes left in your case.... [I]nstead of taking supplementary depositions, you can use requests for admissions."'3

The key, as always, is to be creative in one's thinking. The lawyer should ask: "What am I trying to prove? What am I seeking to accomplish by undertaking this discovery? Can I achieve these same results by other means?" The discovery plan will help counsel direct his or her efforts in this manner.

4. Depositions

Depositions are a costly method to develop facts, but provide the best means to avoid surprises. Because of this double-edged sword, planning depositions can have the greatest impact on the discovery budget. If they are undertaken without a plan, deposition costs will spiral out of control. If they are undertaken with cost as the only factor, the case will likely settle at a figure higher than necessary, or result in a trial award sufficiently high to give even a bird dog indigestion. So what might a good bird dog trainer do? Here are some hints:

a. Determine the Deposition's Focus Before it is Taken

Professor McElhaney offers some guiding principles:

*Know as many of the pertinent facts as you can before you take the deposition.

*Go to the scene. Study the pictures. Read the correspondence. Talk to your clients. Do everything you can to get educated before you start formal discovery.

* [D]o not begin with depositions unless you must. Start with written interrogatories to get names, addresses, telephone numbers, product names and production dates - "hard" data....

*Learn as much as you can about the witness before you take the deposition.

One of the easiest ways to miss something big is to go to the deposition cold.

*Know what kind of deposition you are going to take.14

b. Determine What Sould be Accomplished

Once the preliminaries are completed, determine what you want to accomplish at a deposition:

1. Testing the witness and the lawyers. Nearly every deposition involves evaluating the witness.... This is essential information.

2. Getting information .... Ask open-ended questions that invite explanations.

3. Building your case.... [B]reak the story into simple facts and put them to the witness one at a time.... Building your case is something you should usually do at the end of the deposition, not at the start. 4. Testing your theory.... [You] want to get double-duty out of the other side's expert by using him as a testing ground for [your] own theory of the case.

5. Boxing the witness.... [This] is one of the most important deposition techniques.

6. Evidence.... [A]n "evidence deposition" should be done entirely differently from a "discovery deposition." . . . Keep it short, simple and interesting .... Think of the court reporter as the jury.

7. Settlement.... [S]ometimes your own clients cling to unrealistic expectations until they have had to answer questions under oath. A settlement deposition can be useful.'5

B. Informal Discovery

Informal discovery is any process used to develop the key facts of the case without utilizing any on-the-record method provided by the rules of civil procedure. Examples of this method of fact gathering might include the following:

i. "Statementize" witnesses with the assistance of counsel. This will enable the questioner to fashion the inquiry to the key legal issues of the case and may possibly prevent the need to depose the witness later because an important question was overlooked.

ii. Exchange information by agreement among defendants without formal discovery requests. This will allow the defendants to get needed information without the expense of formal discovery requests and, at the same time, prevent the plaintiff from benefiting from the disclosure of the information on the record.

iii. Use computers to discover public information. P.C.'s can be used to obtain important information without the need to use a subpoena (e.g., driving records, criminal convictions, prior lawsuits, professional licenses, etc.).

iv. Freedom of Information Act Discovery ("FOIA"). The FOIA was designed to allow citizens to gain access to government documents. It can be utilized by parties to litigation to obtain important government documents with relevant information ranging from weather reports to accident investigation findings. "The Freedom of Information Act (FOIA) [5 U.S.C. 552 (1982)] and discovery provide separate mechanisms for obtaining the disclosure of government documents."'6 "A litigant is a member of the general public and, in that capacity, is entitled under the FOIA to the same access to government records as is any other person."7

"The Act makes it very easy to make a FOIA request. The requester need only `reasonably describe' the records he wants and comply with the agency's published rules or the `time, place, fees (if any), and procedures to be followed."'18"[G]overnmental investigative reports [] although not themselves admissible as evidence, often provide useful leads on the basis of liability or defenses.... [T]he FOIA provides earlier access to agency records than does discovery."19

C. Depositions Upon Written Questions

This form of deposition, authorized by the rules of civil procedure,20 is rarely used. Since the rule requires delivery of the written questions to all parties ahead of time, lawyers are wary of this tool because they do not want an opponent or the deponent to know the areas of inquiry or the questions to be posed in advance of the deposition. When used in a planned and deliberate fashion, however, these depositions can achieve the results desired in a very cost-effective manner. In fact, this form of deposition is best used to establish the business records exception so as to enable the introduction of such documents at trial.

If the opposing party denies a properly phrased request for admission,21 the deposition upon written question can be used to establish the foundation for the business records exception to the hearsay rule. There are other uses for this method of discovery as well; the lawyer must be creative within the parameters of the lawsuit.

D. Joint Defense Agreements

The use of joint defense agreements in multi-party litigation has two distinct benefits. It is a cost-saving device and operates to deter plaintiff's counsel from pitting one defendant against another. The agreement between defendants on the direction of at least one phase of the litigation (e.g., damages) allows for the division of responsibilities with the attendant cost savings.

"Evaluate with experienced litigation counsel the feasibility and desirability of cost-saving joint defenses for similarly situated defendants. At the very least, certain joint discovery should be undertaken with similarly situated defendants."22 In a case involving multiple defendants, the plaintiff often seeks to benefit from the conflict among defendants, hoping they will "point the finger" at each other. The result can be:

.... destructive anarchy, with each defendant presenting a different theory of the case while blaming each other. Frequently, the only litigant who benefits from a fractionalized "every-man-for-himself" defense is the plaintiff.

. . . The defendants can develop a unified and consistent theory of the case to present to the jury through the best witnesses among the codefendants' employees and jointly retained experts.... There are also many practical advantages, including the coordination of pre-trial preparation and discovery, the exchange of information, and the sharing of litigation tasks and costs.23

E. Discovery Stipulations With Opposing Counsel

"Agree with your adversary to limit the number and length of depositions to be taken. [For example,] a . . . time limitation [on the length of depositions] can provide great cost savings, save witnesses from harassment and force litigation counsel to focus on what really matters."24

F. The Efficient Use of Paralegals

Perhaps the most common use of paralegals is in the area of factual research.... Even less experienced paralegals can be used to locate relevant records (medical, police, employment, school, personnel), lay and expert witnesses (using phone directories, utility lists, professional associations' lists), and tangible and photographic evidence. This level of paralegal also can be used to screen, code and file discovery documents. More experinced paralegals can obtain facts directly from federal, state and local government agencies. They can perform title searches at the recorder's office, ascertain corporate status from the secretary of state, check records of courts and administrative agencies for prior lawsuits or violations, etc.... [A] paralegal also can serve as the perfect liaison between you and your client throughout discovery.... During discovery, the paralegal should remain in contact with the client so he or she can obtain information needed to answer interrogatories, satisfy production requests and prepare for depositions.... In addition to locating facts, paralegals can reduce your preparation time by providing written factual summaries of various records and responses received during discovery.25

IV.

USE TECHNOLOGY TO SPEED DISCOVERY AND REDUCE COSTS

Technology has evolved from "the latest fad" to a necessity during litigation. Instead of buying the fastest, slickest and best system on the market, however, think first of how this tool can achieve the twin goals of speedy resolution and cost-effective discovery of the key facts.

"[W]ith modems and faxes transferring information back and forth. . . [i]t will change the time frame of discovery, because firms will be able to exchange documents a lot quicker."26

Advances in computer technology provide significant opportunities to manage litigation more effectively and to reduce litigation expenses. Particularly in large-scale litigation, corporations should make the investment to computerize, store, and retrieve information.

In complex litigation, corporations should consider use of imaging and scanning devices for document storage and retrieval.... The system itself reduces storage space and handling costs for documents in a complex matter.... Using a full text retrieval system can save attorney and paralegal review.... [M]anual production can require numerous days as opposed to a few hours on a computerized system."

There are a number of ways to teach an old bird dog to hunt in this manner. The scope of this article precludes a discussion of the software and hardware options available; it will focus instead on a few technological suggestions for achieving these goals.

A. Real-time Reporting

Saving money and increasing efficiencies are at the heart of the latest trend in court reporting. [I]nteractive real-time reporting . . . is sweeping the industry.

. . Using interactive real-time is surprisingly simple. A computer is linked to the court reporter's steno machine, and the reporter's shorthand language is translated into text for immediate viewing. What makes the technology interactive is the user's ability to mark, annotate, highlight and make notes. It is as easy as click and drag.

. . . For lawyers, the benefits are numerous. To start with, they are able to walk away from the deposition with a rough working copy of the day's testimony. Digesting can be done on the spot, and several time-consuming steps are eliminated. By instantly marking and/or annotating the text as it is scrolling by on the computer screen, the lawyer no longer has to wait until the transcript is completed, summarized by a paralegal, typed by a word processor and proofread by the attorney.28

B. Brief and Pleadings Data Banks

Many organizations, clients and firms have utilized technology to enhance the speed and cost-efficient production of legal briefs and pleadings. The Defense Research Institute, for example, maintains a computerized data base of briefs and expert depositions. The expert depositions can now be accessed, reviewed and down-loaded by even the "technologically challenged" lawyer from the comfort of an office chair.

State defense organizations have established computer "bulletin boards" to exchange information that is of mutual interest to defense lawyers.29 The possibilities are endless.

The creation of expert and non-expert witness databases permit lawyers to quickly and easily search for witnesses who were previously deposed on any case handled by counsel for the corporation.... The lay witness databases are often used by insurance company Special Investigative Units (SIU) to check for possible witness fraud. For example, if one name shows up over and over, counsel may wish to look at that witness's background more fully. Alternatively, one can easily track the treating physicians in a given area to see if they are involved in an inordinately high volume of cases.30

C. Video-Conferencing

Kinko's recently installed 140 video-conference centers throughout the country [which] can be used by lawyers to meet with, prepare and depose witnesses....

By using tele-video conferencing, attorneys can now depose or interview witnesses at a much lower cost than flying to another city. . . . [A]n attorney can now gain information for far less money. For example, interviewing in person a key employee involved in a case might not be economically feasible, but a tele-video conference could achieve significant results for a fraction of the costs.... [V]ideo-conferencing makes attorneys more efficient and, therefore, more cost-effective.31

VI.

PRE-LITIGATION MANAGEMENT

Even though this article has focused on managing discovery once litigation has commenced, pre-litigation planning bears some mention. Once again, lawyers should bear in mind that the best way to manage costs is to avoid them.

Corporations should take advantage of the opportunity to have a lawyer review projects, corporate deals, and contracts with an eye towards avoiding litigation down the road or placing the corporation in the strongest position should litigation arise ....

Lawyers can help corporations avoid litigation by developing litigation awareness programs . . Corporations should also have and should review document retention policies. The existence and uniform adherence to a corporate document retention policy can be used to appropriately explain the absence of particular documents.

Corporations should develop educational programs to alert and sensitize employees to the litigation process and to avoid "smoking guns" from being created in the first place32 (e.g., breast implant documents).

Once the litigation is filed, procedures should be in place to select and retain outside counsel immediately. The day you are served with suit papers is not the time to search for competent counsel to handle this particular matter.

Inside counsel's role at this stage is critical in working with the corporation to establish overall business goals and priorities for the litigation and, after outside litigation counsel has been retained, communicating those objectives to outside counsel. Clarifying the corporation's basic objectives at the outset of litigation helps ensure that inside counsel and non-legal personnel together with outside litigation counsel function effectively as a team to achieve the desired result.33

VII.

CONCLUSION

One can teach an old dog new tricks. That bird dog can find the pheasant, tell the hunter where it is and retrieve the quarry after successfully hitting the target - a fitting analogy to the use of techniques and tools to make the discovery process a fast and efficient method of resolving a legal dispute. Judge Learned Hand said that "[ais a litigant I should dread a lawsuit beyond almost anything else short of sickness and death."34 Instead of dreading litigation beyond all reason, it is time to "tame the beast" and make it hunt. Failing that, the beast will turn on us. Instead of pheasant on the table, we may be the main course! Happy hunting!

1 Bruce T. Rubenstein, The "Constant Battle" to Keep Litigation Costs under Control, CORP. LEGAL TIMES, Nov. 1996, at 7.

2Bedora A. Sheronick, Rock, Scissors, Paper: The Federal Rule 26(a)(1) "Gamble" in Iowa, 80 IOWA L. REV. 363, 367 (1995) (quoting Edward F. Sherman, The Judges Role in Discovery, 3 REV. LITIG. 89,196-97 (1992)).

31d. at 370 (quoting GEORGE RAGLUND, JR., DISCOVERY BEFORE THE TRIAL 263-64 (1932)).

4Confronting the Discovery Beast, THE TEXAS LAWYER, Feb. 19, 1996, at 10 (contributors included Joseph Latting, partner Liddell, Sapp, Zivley, Hill & LaBoon - member of Supreme Court Advisory Committee. Casey L. Dobson, partner with Scott, Douglass, Luton & McConnico, Austin, TX - vocal critic of proposals to limit discovery. Alex Wilson Albright Senior Lecturer, University of Texas School of Law - member of Supreme Court Advisory Committee. Charles F. Herring, Jr., Charles F. Herring, Jr. & Assoc., Austin, TX - Member of Supreme Court Advisory Committee. Robert Elder, Jr., Austin, TX - Senior Reporter for Texas Lawyer and online editor for Texas Counsel Connect). 5 Id. at 12. 6 Id.

7Jerome Wolf & Kent Snapp, Novel `Early Assessment Program ' Cuts Costs, NAT'L L. J., April 29, 1996, at B9, BIO.

8 Paul Marcotte, Unequal Justice: Lawyers, Judges Worried About Litigation Costs, 75 A.B.A. J. 44 (Sept. 1989)(citing Procedure Reform of the Civil Justice System, LOUIS HARRIS AND ASSOCIATES INC., New York, N.Y.).

9 Id. 10 Id.

11James W. McElhaney, The Discovery Plan, 75 A.B.A. J. 76 (Dec. 1989). 12 Id. at 78.

13 Id. at 79.

14 James W. McElhaney, Focusing the Deposition - Using Your Goals to Guide Your Deposition Techniques, 79 A.B.A. J. 84 (July 1993).

16Edward A. Tomlinson, Use of the Freedom of Information Act for Discovery Purposes, 43 MD. L. REV. 119 (1984).

17 Id. at 122. 18 ld. at 130. 19 Id. at 159-60. 20 FED. R. CIV. P. 31.

21 The easiest way to establish the business-records exception to the hearsay rule is by a properly framed set of requests which track the foundational requirements of the exception.

22In,ing B. Levinson, Strategize Litigation with Outside Counsel to Cut Costs; 101 Ways to Control Outside Legal Costs - Part IV, CORP. LEGAL TIMES, Nov. 1995, at 15 n.91. 23Report on Cost-Effective Management of Corporate Litigation, The Corporate Counsel Section of the New York State Bar Ass'n, 59 ALB. L. REV. 263, 309 (1995).

24Id.

25 Laurie Zimet, Using Paralegals in Pre-Trial Litigation, LEGAL ECON., Mar. 1988, at 63, 63-64.

26 Jim Meyer, Technology 2001, 77 A.B.A.J. 66, 69 (Dec. 1991).

27 Report on Cost-Effective Management of Corporate Litigation, supra note 23 (citations omitted).

28 Cary Sarnoff, New Tools in Court Reporting, METROPOLITAN CORP. COUNS., Dec. 1995, at 48.

29For example, the Florida Defense Lawyers Association enables its 1000-plus members to log on to a password-protected bulletin board system through their computers. This system contains areas where members can exchange information on experts, discuss trends in plaintiffs strategies and compare notes on legal arguments that work. This system also has available to the members all of the Amicus briefs filed by the association. These briefs can be down loaded by the members for use as they see fit.

30 Sarnoff, supra note 28. 31 Id.

32 Report on Cost-Effective Management of Corporate Litigation, supra note 23. 33 Id.

34 Irving R. Kaufman, New Remedies for the Next Century of Judicial Reform, 57 FORDHAM L. REV. 253, 255 (1988) (quoting Learned Hand, The Deficiencies of Trial to Reach the Heart of the Matter, in 3 LECTURES ON LEGAL TOPICS 87, 105 (1928)).

Lewis F. Collins, Jr. is a senior shareholder in the Sarasota, Florida firm of Dickinson & Gibbons, P.A. He is a Board Certified Civil Trial Lawyer. Mr. Collins received his J.D. from Loyola University of New Orleans and his B.S. from Florida State University. He is Immediate Past-President of the Florida Defense Lawyers Association and is a Regional Vice President of the Federation of Insurance & Corporate Counsel. Mr. Collins' areas of specialization include drug and medical device litigation, professional malpractice, products liability, toxic torts, and insurance litigation. He has written extensively and is a frequent lecturer.

Copyright Federation of Insurance & Corporate Counsel Fall 1997
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