Commentary: The Lawyer's Bookshelf - 'Discovery problems and their

When I was a young litigation associate at a large law firm, one of my primary responsibilities was the research and briefing of the seemingly endless discovery disputes that arise in what is quaintly called trial work but that in reality is almost entirely pretrial work. At the time I assumed these tasks fell to me because the partners for whom I worked were busy with the more important work befitting their station.

Having now ascended to that august position myself, I am convinced that this division of responsibility between partner and associate reflected not the lack of importance of discovery disputes but instead their great difficulty.

Like all matters related to discovery, the successful enforcement of a party's discovery rights requires diligence, discipline, and an attention to detail. Briefing discovery disputes is an especially difficult chore because of the remarkable dearth of case law and secondary reference sources.

Indeed, with respect to available case law no greater disparity exists than the inverse proportion between the frequency with which a discovery dispute arises and the existence of case law addressing the issue. Appellate courts rarely decide discovery issues so we are reliant on trial court opinions - hardly ever in the case of state courts, and only an occasional F.R.D. opinion in federal court.

So the other litigation associates and I made do as we could. For the more esoteric questions there was always Wright & Miller or Moore's Federal Practice. And I recall there was an old volume of nisi prius decisions reprinted from The Daily Record that we would pore over like monks studying an ancient sea scroll for the word of God.

But for the real life, down-to-earth, practical discovery problems that would come up again and again there was little, and the intervening years have done little to fill this gap. Other than current niche areas in vogue like electronic discovery, discovery issues remain among the most under-served areas in all legal research practice aids.

The associate of today is in as difficult a position as was I, those many years ago. Or was.

For into this void comes a remarkable volume by three experienced litigators (one of whom has the additional perspective of having served on the bench for several years). They have produced an instant classic that is a must for any litigator's bookshelf.

Practical structure

The structure of the book is designed to be of practical use. Each of four sections (Interrogatories, Document Requests, Requests for Admissions, and Motions for Mental and Physical Examinations; Depositions; Experts; and Sanctions and Protective Orders) contains a brief introductory overview followed by a series of chapters ranging from the relatively routine (Notice of Deposition - Timing) to the arcane (Discovery of Foreign Citizens and Residents).

Each chapter in turn begins with a brief hypothetical that provides context for the discussion that follows. For instance, the chapter on discovery of oral communications and privileged documents provided to a witness, begins:

Plaintiff's counsel is poised to depose an eyewitness to a motor vehicle collision. The witness is cooperative and agrees to meet with the lawyer before the deposition to prepare. During the meeting, plaintiff's counsel provides his chronology of events and presents an abbreviated opening statement to orient the witness. During the deposition, defense counsel learns of this meeting and the information provided to the witness. She wants to see the chronology and asks the witness to repeat the opening statement. Plaintiff's counsel objects on the grounds of attorney-client privilege and work-product doctrine. How should the issue be resolved?

Following the hypothetical is a Comment collecting what case law exists on the question, citations to law review articles, and the authors' detailed analysis of the correct answer (nutshell: disclosure to nonclient waives attorney-client privilege but work product doctrine may still apply depending on circumstances).

Most of the chapters conclude with one or more practice tips. For example, in the chapter relating to nontestifying experts, the authors caution that [c]are should always be taken to insulate the nontestifying expert from the testifying expert, preventing them from communicating with each other, lest damaging facts or opinions become discoverable once learned and considered by the testifying expert. The only problem with the practice tips is that they are fairly general in nature. For example, the frequent admonitions throughout the work to carefully consult scheduling orders to ensure that deadlines are not missed, while salutary, are not particularly helpful.

Space does not permit any but a sampling of the many topics addressed by the book, which include discovery of electronically stored information; ethical considerations in representing your corporate client's employees in deposition; discovery of jury consultant and focus group materials; use at trial of an unavailable witness; use of deposition for impeachment at trial (including sample pattern examination); the basics of taking an expert's deposition; timing and supplementation of expert disclosures; reasonableness of fees and expenses charged to deposing party by adverse expert; nonproduction, spoliation, discovery violations and adverse influence; and so on.

In addition to a helpful chart summarizing discovery sanctions, the book contains extensive appendices containing the text of the federal rules governing civil discovery, the local federal discovery guidelines and standard interrogatories, and the ABA Civil Discovery Standards and 2004 amendments.

National scope

One caveat for state practitioners: Because this book was produced under the auspices of the ABA and is intended to have national scope, the focus is on the federal rules and there are no references to the Maryland rules. Many of the topics discussed, however, may be applied to state practice, provided care is taken to note differences between applicable state and federal rules.

Messrs. Fax and Sandler and Judge Grimm are to be congratulated for their contribution of a practical and much needed addition to the litigator's art.

Andrew D. Levy is a partner in Baltimore-based Brown, Goldstein & Levy LLP. He is a member of The Daily Record Editorial Advisory Board and, along with Paul Mark Sandler, coeditor of Appellate Practice for the Maryland Lawyer: State and Federal (MICPEL 2001).

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