YLS Newsletter

Julianne GerminderStrategic Discovery

by Julianne Germinder
Office of the Missouri Attorney General, Jefferson City

Discovery.  What is it?  Why do we do it?  I know in my earlier practice, it was just something to complete, to check off my list.  But discovery can be, and should be, so much more.  The strategic use of discovery is a skill that many attorneys do not spend enough time cultivating. 

Perhaps those among us who best utilize discovery are just those of us who make and plan and follow-through on it.  Strategic discovery is still something that I am attempting to implement in my own practice.  The basic concept is using discovery as it should be used:  reviewing the opposing party’s pleadings and crafting thought-out discovery based on what you need in admissions and what you need to ensure the opposing party will not be able to establish.  So, to begin, you first need a clear understanding of the elements of the claim and defenses.  What does plaintiff need to establish?  How can defendant avoid liability? 

Take for example a whistleblower wrongful discharge claim:  plaintiff must establish that 1) plaintiff reported wrongdoing to an appropriate entity, 2) plaintiff was discharged, 3) plaintiff’s discharge was caused by plaintiff’s report of wrongdoing, and 4) plaintiff suffered damage.  In response, defendant must negate one of these elements and can do so through a variety of evidence.  Let’s limit our analysis to the first element of plaintiff’s claim—that he reporting wrongdoing.  This element actually requires three things:  a) a report of b) wrongdoing to an c) appropriate entity.  So, defendant would want to ask discovery that is aimed at discovering whether plaintiff can establish all three parts of the first element of his claim. 

I agree.  This is litigation 101.  But, we are all guilty of losing sight of what we’re trying “to discover” in the discovery process.  That’s why making a plan of how you will carry on your discovery plan throughout pre-trial is the preferred method for many of those most experienced, most skilled litigators.  Thus, to discover what reporting was done from our above scenario, your plan might be read:  1) Interrogatories:  ask for dates of reports, to whom reports were made, the subject matter of these reports, and any witnesses to the reports; 2) Requests for Production:  ask for documents evidencing reports of wrongdoing; 3) Admissions:  ask plaintiff to admit that he did not make a report of wrongdoing to an appropriate entity; 4) Deposition:  walk through every report made by plaintiff including all relevant details—dates, circumstances, substance, individual to whom report was made, witnesses, etc.  This is a basic plan (and an imperfect plan to be sure).Think creatively about how you can get the best or most reliable information:  could you serve a freedom of information request directly on the agency to which the individual alleges he made his report? 

Now, it’s time to think strategically.  Do you actually want to ask the plaintiff to think about his claim in such detail or can you obtain enough information from other resources that you’d rather depose the plaintiff without giving him a preview of your questions? Does it make sense in this case to do written discovery before or after depositions?  Do you want to do very basic written discovery, then plaintiff’s depositions, then follow-up written discovery?  Every case is different and so is every opposing counsel.  You’ll want to develop your discovery strategy for each case individually, but you’ll see if you start focusing on the strategic use of discovery, you can make a real difference in the preparation of your case well in advance of dispositive motions, trial, and even bring about productive settlement discussions.