May 16, 2008

June TRIAL: Discovery

Learn to navigate the challenges of discovery -- including e-discovery, expert disclosures, and how to keep your deposition routine fresh -- in the June issue of TRIAL.

·Piecing together the e-discovery plan: Electronic discovery may be the most challenging type of discovery you’ll do--and it will only be harder if you’re squabbling over the basics with defense counsel. Start with a meet-and-confer session to determine what you're looking for, what data and metadata are relevant to the case, how the data should be preserved, and other questions you need to have answered before you can start your search.

Keep discovery civil: When discovery requests are met with abusive, evasive, and Rambo-like tactics and courts are reluctant to intervene, what’s a lawyer to do? Brush up on case law and the rules of evidence, and don’t let defense counsel get away with boilerplate objections or blanket claims of privilege. Knowing the rules can help you make the discovery bullies back down.

De-escalate the expert discovery wars: The American Bar Association is considering amendments to Rule 26 that would preclude discovery of attorney-expert communications and draft expert reports. The changes haven’t been adopted yet, but you can achieve similar results now by negotiating with defense counsel to limit expert discovery. Here’s how (and why) you can create a win-win agreement.

Taking exceptional depositions: Has taking depositions become a stale routine? If so, it’s time to refocus your energies and try a new approach. Specific techniques--exhausting the witness, restating and summarizing, and boxing in--let you control the pace of questioning and the type of responses you’ll get. Don’t let your witnesses derail your deposition. Take charge and get exceptional results.

Kicking discovery orders upstairs: You may not have to wait until a case is over to raise discovery issues on appeal. If you’re facing onerous discovery orders or a trial judge’s abuse of discretion, relief--in the form of special writs, discretionary appeals, and the collateral order doctrine--is available. Use these tools to get an intermediate hearing before the trial, or the damage, is done.

Also in this issue:

Defeat the “cat’s paw” defense to vicarious liability: Employers in workplace discrimination cases have been dodging accountability by saying that to establish liability, the worker must prove that the final decision-maker is a rubber stamp, or "cat's paw," for a biased supervisor. But circuit courts have found that basic tort and agency laws can dispel the cat’s-paw defense.

TRIAL articles are accessible on justice.org to AAJ members. Members may register online for a username and password or call AAJ's Membership Department at (800) 424-2727. Nonmembers may obtain photocopies of articles by calling (800) 424-2725, ext. 216.

 

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