By Alexi Silverman
Wilson Turner Kosmo LLP
Last month, I had the privilege of moderating the New Lawyer Division’s first legal education event this year: “Effective Tips for Written Discovery.” Monty McIntyre, a skilled attorney, mediator, arbitrator, and past SDCBA president, shared his experience and advice with NLD members.
According to him, the most important part of civil discovery is deposing witnesses. However, to get there, attorneys must conduct effective written discovery to identify witnesses as well as identify key documents.
McIntyre’s first step in approaching written discovery is to conduct informal discovery, which may include conducting a site inspection, talking to non-employee witnesses, or gathering critical documents. Next, attorneys may commence formal written discovery.
McIntyre’s strategy is to use interrogatories early in the case, mostly to locate key witnesses and documents. He advises attorneys to use only applicable form interrogatories and to tailor special interrogatories to the case.
Requests for admission (“RFA”) can be valuable in cases in which you cannot get attorneys’ fees under a statute or contract clause, as you may be able to obtain attorneys’ fees or costs for unreasonable denials. However, in McIntyre’s experience, many judges are reluctant to award attorneys’ fees and costs for RFA denials. For example, he once went to trial on a breach of oral contract case which did not allow for attorney’s fees. He strategized to send out RFA early on in the case. He received a 12-0 verdict and the jury gave his client every penny. He made a post-trial motion for attorneys’ fees based on RFA denials, but the judge denied the motion.
Requests for production of documents (“RFP”), like interrogatories, can be sent early on in the case. McIntyre emphasizes that the best requests are simple and short. Once you obtain documents, he suggests preparing a chronology with information such as dates, times, events, and where the document came from. Adding Bates stamps to documents can further aid with organization. The strategy again is to get all the key documents early on in the litigation in order to have accurate, pertinent information and prepare for critical depositions. For example, early in his career, he received incorrect insurance information in discovery. For that reason, he has formed a practice of requesting complete copies of primary and excess insurance policies in every case.
Mr. McIntyre remarked that you’ll get the most honest answers from individuals who do not have a key stake in the litigation. Subpoenas are appropriate for depositions of non-parties and document requests directed to non-parties. The risk of subpoenaing a non-party is that your opponent also has access to that non-party. However, if an attorney engages in informal discovery and speaks with the non-party right off the bat, he or she is first to get the story.
When it comes to discovery disputes, Mr. McIntyre suggests avoiding motions to compel wherever possible; however, he recognizes new attorneys must follow their firm’s protocol. Talking with your adversary on the phone (or even in person) is the best way to communicate and narrow down disputed information. His suggested approach would be to get to know opposing counsel early on in the case and communicate expectations and an approach to discovery.
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