Written Discovery: Mad Max and the Thunderdome
Picture the Thunderdome. A shadow filed, iron caged, dome with a dirt floor the color of rust from recently spilled blood. The moving shadows are created by the post-apocalyptic spectators hanging along the outside of the cage, clad in various leather costumes with open sores oozing puss. You are Mad Max, you have a whistle, and your opponent is Master Blaster, a physically intimidating champion controlled by a small genius. “Two men enter, one man leaves! Two men enter, one man leaves.”
How does this apply to written discovery? It’s a fun illustration as to how I view discovery. That little whistle is my written discovery requests, the diminutive Master is opposing counsel, and Blaster is the opposing party. As with Mad Max’s little whistle, well prepared written discovery can bring an opposing party to its knees, regardless of how good opposing counsel may be.
Written discovery serves a number of purposes, some more obvious than others, and is the primary means of steering a case. Written discovery can accomplish the following goals: 1) Obtain previously unknown information; 2) Obtain previously unknown documents; 3) Obtain known information in admissible form; 4) Obtain known documents in admissible form; 5) Force opposing counsel (Master) to learn more about the case; 6) Force opposing party (Blaster) to do some work; 7) Get a better understanding of who I am dealing with (both Master and Blaster); 8) Get my case before the judge; and 9) Prepare for depositions (where the real work is done). There are few other legal means for accomplishing so much. As such, I draft my discovery requests with each of these goals in mind.
The primary goals of discovery are 1-4, obtaining information and documents in admissible form. In law school, I was taught that these “primary goals” were the only goals to be accomplished in written discovery. I was taught that all I had to do was serve well written discovery requests and, 30 days later, all would be revealed. That’s funny. I struggle to think of the last time that I learned something new and interesting as a result of written discovery. Generally, I am happy to obtain documents in discovery and avoid having to authenticate what is already in my possession. I will use these documents during depositions.
Written discovery is the best way to get on opposing counsel’s radar. I want opposing counsel to be thinking about this case more than his/her other cases. Whether it be plaintiff’s or defendant’s counsel, I want them to know that I am working the case, know more about it than they do, and will be pushing the case toward a resolution. I like to give opposing counsel the impression that our case together is the only case I have to work. Although results vary, I get the impression that most opposing counsel endeavor to learn more about their case as a result of my well-prepared written discovery. If opposing counsel knows more, then we can have a realistic discussion about the value of a claim. My written discovery makes opposing counsel work the case and helps to advance the ball.
Layman hate written discovery. Be it a first-time plaintiff or a seasoned litigant, they will marvel at my legalese, will balk at my interrogatories, and will throw their hands up in frustration trying to produce documents in response to my requests for production. I do not ask for information or documents solely to create work. I seek very specific, very relevant information. Those attorneys who cast a wide net in written discovery are being lazy and do not get the point. Remember, I rarely find something new through discovery. My requests are so specific as to be beyond a reasonable objection, and they require the opposing party to do some work. By making the opposing party work, I force them to learn whether or not they will be capable of proving their claims or defenses, and I make them ask themselves whether they want to keep fighting this fight.
Through written discovery, I learn who I am dealing with. I could be wrong about Master Blaster. If my opponent does not make form objections, provides direct responses, and produces well organized documents, I will take note that my client and I are in for a real battle. This will certainly affect strategy and odds of success. On the other hand, if my opponent asks for five extensions, makes senseless objections, and produces hardly anything, I will get exponentially more aggressive, e.g., Mad Max grabs the sledgehammer after blowing his whistle and starts thumping Blaster in the head.
I hesitate to add a motion to compel as a reason to serve written discovery, but it is worth mentioning. Sometimes I know that Master Blaster is just trying to be intimidating. I know that they cannot provide reasoned responses or produce responsive documents. I then need to show this disability to the court. When taken to the extreme, I have been successful in obtaining sanctions, recovering my client’s attorneys’ fees for all of written discovery. In most instances, I have been able to get what I want and move on to depositions.
Depositions are the real reason I serve written discovery. My written discovery provides a road map for my depositions. I use the same outline for my depositions as I do for my written discovery. I use what answers I have received to formulate my leading questions. I use the opposition’s documents as my primary exhibits, and I use the witness to prove up every document that I use. Produced documents may be self-authenticated, but they still need to get past the hearsay rule. Preparing really good written discovery requests makes taking depositions much easier and far more effective. I have learned something new and interesting in nearly every deposition I have taken. My depositions would be far less successful if I did not serve good written discovery requests.
That is pretty much the extent of my advice using the Mad Max analogy. I would like to say that winning a case is like blowing up the Thunderdome and ending Tina Turner’s reign of terror, but that’s really a stretch.
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