- Interview your client. Your client is an essential and relatively inexpensive source of information. Interviewing your client can help you (1) to identify issues in the case and (2) to produce leads for admissible evidence for trial. A plaintiff is often a percipient witness to many of the key events at issue in the lawsuit. By finding out who was present and what was said during these events, you can often highlight issues that should be covered in a discovery plan and at the same time begin evaluating the strengths and weaknesses of the case. If the defendant is a corporation, the client interview frequently requires interviews of several employees.
- Tell your client not to get rid of evidence. Explain to your client the duty to preserve evidence. Especially when it comes to electronically stored information, which may be routinely destroyed as a matter of usual business practice, make sure that your client understands the duty to preserve evidence as well as the serious consequences that could result from violating this duty (e.g., default judgment or dismissal). To provide meaningful advice to your client on the preservation of relevant documents, you’ll need a thorough understanding of the documents in your client’s possession.
- Discuss priorities within the litigation budget. To avoid engaging in marginally helpful or repetitive discovery, set priorities for what information is essential to the case. Tell your client about the costs and potential benefits of each major discovery effort and be sure to confirm in writing with your client the agreed on discovery plan as it evolves throughout the case. Get client approval for particularly expensive discovery, such as the retention of experts or taking out-of-state depositions.
- Do a risk-benefit analysis with your client. Like any other big investment, discovery shouldn’t be undertaken without a risk-benefit analysis. Because discovery is expensive, a client rarely wants counsel to take every deposition that may prove marginally useful or to obtain and review every conceivable document. A risk-benefit analysis can help you choose discovery tools that are both effective and valuable. Revisit the risk-benefit analysis of various discovery options as the case proceeds and new facts come to light.
In addition to getting client participation, a discovery plan should determine the issues in the case, identify the discovery goals, and consider timing. All of this is covered in CEB’s California Civil Discovery Practice, chap 2. And check out CEB’s program Written Discovery Planning, available On Demand.
And don’t miss your opportunity to get a FREE guide from CEB on How to Conduct Discovery in a Limited Civil Case.
Other CEBblog™ posts you may find helpful:
- How to Write Special Interrogatories
- Before Requesting Discovery, Have a Plan to Enforce It
- This Is How Interrogatories and Depositions Compare
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