Goals for Discovery in Litigation

Formulating a discovery plan is necessary for effectively conducting litigation.

The discovery process (essentially, gathering evidence) is usually the most critical and costly part of litigation. Failure to make a good plan can easily set a case up for excess costs, wastes of time, and evidentiary disasters.

Detailed discovery planning increases the likelihood of ending the litigation on the best terms feasible. If you have solid evidence to counter a major point of your litigation opponent, then you may seriously expect to persuade the opponent to concede that point.

Discovery concerns will differ depending upon the jurisdiction. Familiarity with the discovery statutes, rules, and prevailing practices, along with the preferences of the particular judge, will benefit your discovery planning greatly.

In federal cases, Fed. Rule of Civil Procedure 26 requires initial disclosures. Initial disclosures serve for parties to produce documents and information without waiting for the opposing party to specifically request the documents and information. Often counsel develop a habit of merely going through the motions at this step and providing none or a very minimal amount of documents and information. The prevailing thought seems to stonewall and to undermine the process to thwart the opposition.

However, such thinking is usually typical of junior attorneys not experienced with the process, or at least not experienced with working at a higher level of competency. For example, if the party has dynamite evidence that would pull the rug from under the opposition's case, it usually would be foolish to hide the ball on this issue and wait for a formal request for the documents. In some instances, failure to produce evidence in your possession may prejudice your case later, should you need to rely on those same documents to prove your case.

Merely just going through the motions and hoping to pull off a miraculous presentation at trial should be parts of a Hollywood script but not a part of your litigation strategy, which involves a real case pursued with your real dollars.

While making your discovery plan, assess whether you have a chance at settling the case at an early point. If that is the case, it probably is better to allocate funds to sweetening the settlement offer instead of spending the same funds on protracted discovery.

If early settlement seems unlikely, discovery may serve to "discover" a basis to bring the case to early settlement or an early dismissal.

Discovery results can be essential for winning motions for summary judgment, motions in limine, or other motions to narrow the issues in dispute for trial.

Frederic M. Douglas is an IP litigator, dedicated to pursuing practical resolution of problems concerning patents, trademarks, copyrights, trade secrets, and other areas of law.


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