Dos and Don'ts for Uncovering the Truth During Discovery

Some attorneys come into discovery looking for a fight, but this isn’t the time to battle over admissibility or to try to conceal damaging information from opposing counsel. In fact, bad behavior during discovery can create an unnecessarily difficult working relationship with opposing counsel and damage an attorney’s reputation with the court.

Instead of trying to obscure facts or obstruct your opposition’s requests, you’re better off using this time to strategically set your own case up for success—without the hostility.

Attorney and legal educator Drew Levine, Esq. believes attorneys often go too far trying to protect their clients by fighting over discovery when they could be using the time to better prepare their case.

“Don’t be weird,” Levine said in a recent webinar hosted by InfoTrack. “Don't be wishy washy. Don't be evasive. Put your cards on the table. Tell the other side. I think approaching opposing counsel transparently and honestly about any limitations you have, any struggles you have with clients, is really the way to go."

Being appropriately forthcoming and transparent during discovery will help you build good will with opposing counsel and a good reputation with the judge—better protecting your client's interests in the end.

What constitutes acting in good faith can vary by discovery vehicle, so we gathered some of Levine’s best practices for each tool you have in the discovery process.

Interrogatories

Written interrogatories can aid in early case mapping, but they’re not the most effective tactic for uncovering the real truth of the matter.

“The thing you always have to remember is that interrogatories are basically always going to be answered by attorneys,” said Levine. “They're going to carefully craft them so as to not give away the farm.”

You can still make good use of interrogatories to establish the key facts of the case while avoiding unnecessary challenges from opposing counsel.

Do:

Limit the scope of each interrogatory by sticking to one idea or line of questioning.
Narrow the definitions of relevant terms for the sake of clarity.
Use contention interrogatories to get a sense of how the opposing side is going to argue their case.
Start building a deposition funnel by asking about who was involved, whether records were kept, and where or how to get them, to identify the right witnesses to depose later on.

Don’t

Ask overly broad questions, which can leave too much room for opposing counsel to omit information you need.
Use vague language that can be misinterpreted, willfully or not.

Requests for admission

You can significantly reduce trial time and costs by agreeing on undisputed facts and issues in a request for admission.

“This is actually one of my favorite vehicles,” said Levine. “Because this is a really good way to lock the other side into authenticating documents without having to go through a cumbersome process at trial. You want to use them to clear the air and to reduce the amount of fights that you're going to have leading up to trial.”

Establishing facts at this stage allows you to spend more of your time proving disputed facts that support your case.

Focus on getting the opposition to admit to indisputable facts, rather than conclusions.
Admit to all the indisputable facts you’re able to
State a specific reason in instances where you are unable to admit or deny.

Don’t

Ignore a request, since a failure to respond means the facts will be deemed admitted by default.
Deny indisputable facts, which can result in sanctions.
Use excessive or irrelevant requests for admission to harass the opposition.

Requests for production

Requests for production can be time-consuming, but clarity is essential at this stage. Ensure your requests are as explicit as possible, making it more likely that you’ll get what you need. Opposing counsel may have grounds for objection if your request is too vague or burdensome, or if it could compromise privacy or privilege. Some attorneys will be looking for loopholes that will allow them to withhold documents, too.

“A lot of people seem to want to hide documents that they know should be produced,” Levine said. “And people tend to come up with strange and clever reasons [to do so]."

It can be helpful to review procedure regularly so you know everything you have to say and produce, and so you’re equipped to remind opposing counsel of their responsibility to do the same.

Clarify definitions to avoid fights over what constitutes, for example, a “personnel file.”
Target requests by custodian, date range, system or file type, specific events or decisions, or other details that can make it easier for the opposition to find and produce the necessary documents.
Ask opposing counsel for a “map” to help you target your requests further.
Suggest phased discovery for high-volume requests to accommodate opposing counsel.
Use objections or denials when necessary to protect privileged information, fend off overly burdensome requests, or to respond to requests you cannot fulfill.

Don’t

Ask for more than you need, which can lead to privacy fights, cost disputes, and document dumping.
Be vague in definitions or requests, which can give opposing counsel room to interpret your request in a way that allows them to produce less than you want.

Depositions

This is your chance to extract the truth directly from a (potentially hostile) witness, so it’s essential to come prepared. Whether you prefer to write all your questions in advance or you’d be more comfortable working from an outline, you should have a good idea how you plan to progress your line of questioning, and be ready to employ a variety of questioning techniques, to get truthful answers to the most important questions you have.

“I love, love, love a good deposition,” Levine said. “This is where cases are won and lost, in my view.”

Come prepared with a road map based on the written discovery you’ve gathered so far, so you know exactly what you need to get out of the witness.

Ask the witness to commit to established admissions.
Ask follow-up questions about any new information the witness mentions.
Ask the witness to share everything they remember about the matter to prevent them introducing new information at trial.
Introduce contradictory evidence to gauge how truthfully the witness responds.
Ask opposing counsel to keep any objections brief to avoid disruption.
Terminate or suspend a deposition if opposing counsel is too disruptive and take the issue to the court.
Prepare your client to face a deposing attorney when it’s their turn

Don’t

Interrupt questioning with excessive or overly verbose objections.
Take a rigid approach to questioning that doesn’t allow you to explore new information.

Third-party subpoenas

No one wants to get a surprise subpoena. When neither you nor the opposing side has access to necessary information, you may need to use a third-party subpoena to get access, but use this method sparingly.

“[I’m] not a big fan of third-party subpoenas,” Levine said. “I think that this should be more of a last resort than a first resort.”

Sending a subpoena to a non-party can cause undue stress and make a previously private matter much more public, so you should do what you can to resolve matters another way first.

Reach out to opposing counsel before issuing a subpoena to see if there is another way to access the information you’re looking for.
Consult local jurisdiction rules to see when and for what purpose non-party subpoenas can be used.

Don’t

Ambush a non-party with an unexpected subpoena.
Issue a third-party subpoena without exhausting other methods for obtaining the information.

Discovery is the time to learn, rather than fight. In this phase, you’ll likely be gathering information from many sources and managing a lot of detailed documentation. Take some of the work of your plate with e-discovery tools that can facilitate the discovery process by helping to identify relevant data, review and code documents, and keep information organized.

Tools like DocketSync, which allows you to sync, organize and track descriptively named documents from state and federal court dockets to your practice management system, can also help take some of the headaches out of managing a case by reducing the number of unbillable tasks over the life of a matter, and keeping you up-to-date on docket changes in your case. Request a demo to see how it works, or get started right now.

To learn more tactics for uncovering the truth in discovery, watch a replay of our webinar: “Discovery as Truth-Seeking: Win Hard Without Playing Hide-the-Ball."