Litigation Management for the In-House Generalist: Discovery

Managing litigation presents a whole new set of challenges and responsibilities to an in-house generalist’s already crowded plate. This article series introduces the art of litigation management from the in-house perspective with tips for various phases of litigation. In Part 4, we looked at retaining counsel and the role you need to play as in-house counsel. In Part 5 of this 6-part series, we look at the various types of discovery.

The hardest, and most expensive, part of most litigation matters is often the discovery process. The goal of discovery is to discover the facts of the case. However, investigation usually is permitted to extend to things that are “reasonably calculated to lead to the discovery of admissible evidence.” Information learned during discovery is used by a party with many goals in mind: to educate themselves about the other party, its business, and the strength of its case; to determine if any other parties should be involved in the litigation; to determine what information, documents or witnesses will be used by the other party at trial; to formulate trial strategy; and to determine if any pre-trial motions, such as summary judgment, are appropriate. Subject to the scope of the case and appropriate objections, two general principles applicable to discovery are to produce what you have that’s relevant to a discovery request but not privileged, and to answer discovery questions truthfully and honestly, and as concisely as possible, based on your knowledge.

Discovery can be grouped into three categories: oral discovery (depositions), written discovery (interrogatories and requests for admission), and visual inspection (requests for production). These are collectively referred to as “discovery requests.” As a handy rule of thumb, you can think of discovery requests as requests to either discuss something (depositions), answer something (interrogatories), admit or deny something (requests for admission), or produce something (requests for production). You will be on both sides of discovery—you get to send discovery requests to the other party or parties, and you will receive them from the other parties. The tips and thoughts below are from the perspective of a party receiving discovery requests.

Depositions

Depositions are essentially a question-and answer session with the plaintiff or defendant (or if the party is an entity, corporate representatives of that party). The persons being deposed are called “deponents.” When you receive a deposition notice, review the deposition topics and reach out internally to determine who would be best situated to speak to those topics. You can put up as many deponents as necessary and within reason, but the general rule of thumb is the fewer deponents the better. Those who are offered up, however, must be prepared, and knowledgeable (or educate themselves through discussions with other employees) to testify about the subject of interest. Employees who like to lecture or sermonize are not the types of employees you want as deponents—better witnesses are those who can answer question completely and succinctly, who are more likely to understand the games deposing counsel play during depositions, and who will not try to win the case through the deposition process. You should send the potential deponents a notice letting them know about the deposition and the topics. There are many articles available about the basics of depositions that are a helpful primer for novice (or a refresher for seasoned) deponents.

You should discuss with counsel whether an objection to the scope of the deposition topics is appropriate. Watch out for requests for production of documents associated with the deposition in the deposition notice—some parties will use a deposition notice to seek written discovery. You should participate in the witness preparation, but be careful not to teach the facts to the deponent (except for corporate designees who must educate themselves about the applicable facts, although this education is better obtained from others with direct knowledge of the business practices).

Interrogatories

Interrogatories are a series of written questions that are provided by one party to another party. The responding party responds in writing to the interrogatories. In some states, interrogatories are generally classified as form interrogatories (general questions used in many cases) and special interrogatories (questions specific to a particular case prepared by the attorneys). Information sought through interrogatories need not be admissible at trial, but must be reasonably calculated to lead to the discovery of admissible evidence. When you receive interrogatories, review them and determine which internal resources have the knowledge and ability to help to respond to them. You should work with the internal resource and outside counsel to draft the response and review it to ensure accuracy. A response to interrogatories generally begins with a list of general objections; however, specific objections should also be asserted (where appropriate) to clarify the scope of the answers being provided and provide clarity to the response, lest the answers be misunderstood, misconstrued or misapplied by counsel or a court.

Requests for admission

A request for admission is a written request for a party to admit or deny a factual statement. By stipulating to a factual statement, the other party can avoid the need to try to establish the truth of the statement at trial. Similar to interrogatories, requests for admission should be reviewed immediately to determine which internal resources have the knowledge and ability to respond to them. You should work with the internal resource and outside counsel to draft the response and review it to ensure accuracy. A request for admission should be admitted, denied, admitted in part and denied in part, or objected to. Like interrogatories, responses to requests for admissions should also contain general and specific objections that are appropriate for the requests.

Requests for production

A request for production (typically of documents or electronically stored information) is a demand by one party for another to produce certain items potentially relevant to the case for inspection. These typically include contracts and other written documents, but can extend to other things as well (e.g., a computer system). They can involve a request to inspect and copy, test or sample designated documents, systems or electronically stored information (ESI). A protective order should cover the manner in which production occurs if there are confidentiality concerns. Consider whether objections to the request for production are appropriate, whether because of the content of the request, or the cost or burden of responding.

Expert discovery

Expert discovery is an essential part of virtually every piece of litigation. Experts can be called to testify on virtually any subject that is beyond common experience and about which opinion evidence would aid the trier of fact. While those opinions can often come from company employees, decisions need to be made from the outset about whether that testimony and those opinions might be better provided, and be more convincing, from an outside expert. While expert discovery often occurs late in a case, the consideration of which experts will be needed and should be retained should be considered much earlier. There are numerous services that can be used to help identify well-qualified experts who are willing to testify. But whether these services are used or not, experts must be vetted well and like the members of the business team, commit to participating in the case for its duration. Because many experts are used over and over by litigants, careful vetting includes conflict checking and background research to ensure the expert is not merely a hired gun who will say anything for a price.