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Aid in Navigating Pretrial Discovery Issues

By Angela Foster, Litigation News Contributing Editor

 

Most civil cases filed in federal court are resolved before trial, either on dispositive motion or by settlement. For this reason, it is essential that litigators understand how to navigate the pretrial discovery process.


Released in April 2013, the third edition of Discovery Problems and Their Solutions is a useful reference for resolving both basic and complex discovery questions. The book was first published in 2005 and updated in 2009. Since the second edition was published, numerous federal rule changes and other developments have occurred in the discovery arena, including with respect to expert disclosures, discovery of electronically stored information (ESI), and the emergence of social-networking evidence.


The updated and expanded third edition describes problems that litigators frequently encounter in pretrial discovery and presents suggestions and strategies for solving them. In this new edition, the authors Paul W. Grimm, Charles S. Fax, and Paul M. Sandler place particular emphasis on the interpretation of new rules and evolving case law concerning ESI.


Discovery Problems and Their Solutions is organized in the same way litigators usethe rules of civil procedure in the course ofpretrial litigation. The book includes four sections:


Section 1: Interrogatories, Document Requests, Requests for Admission, and Motions for Mental and Physical Examinations
Section 2: Depositions
Section 3: Experts
Section 4: Sanctions and Protective Orders


Each section begins with a hypothetical fact pattern, an overview of the applicable rules, and a detailed analysis of the law governing the fact pattern. The book provides scenarios that attorneys are likely to encounter during pretrial discovery. Each scenario is framed as a motion to compel or a motion for a protective order before the court. The authors discuss how a judge would likely rule, present legal analysis, and provide practical tips.


For example, the section on written discovery discusses how to frame and use interrogatories and requests for admission. In one scenario addressing the discovery of social-network evidence, a plaintiff sues her employer for improperly terminating her employment based on her age and sex. The employer’s counsel suspects that the plaintiff used her Facebook and MySpace accounts to send messages and create postings that are relevant to the lawsuit. The messages are not accessible to the public. The employer’s counsel serves subpoenas on Facebook and MySpace. Because neither company responds, the counsel files a motion to compel. The authors discuss why a motion to compel third-party subpoenas as described would likely be denied.


In a second hypothetical using the same facts, the employer has possession of the computer that plaintiff used while working. The employer suspects the computer contains stored Facebook postings and advises the plaintiff’s attorney that the employer will search the computer for responsive evidence. The plaintiff’s attorney moves for a protective order. The authors address several factors that determine whether the social networking evidence may be privileged. Additionally, the book provides an in-depth analysis and dedicates almost 50 pages to a discussion of recent social media cases.


The section on depositions offers more than a dozen scenarios covering actions, from the timing of the notice of the deposition through the use of depositions for impeachment at trial. Young litigators will benefit from the practical tips in this section regarding objecting at depositions, asserting privileges, dealing with obstreperous adversaries, and reviewing deposition transcripts. One scenario involves a witness who asks to make substantive changes to a deposition transcript when provided for review and signature. The witness testified that the plaintiff had run a red light, causing the accident, but later said that she was confused about which party was which and that it was actually the defendant who was at fault. The authors offer various approaches in dealing with the admissibility or inadmissibility of the transcript and the potential consequences.


As in earlier editions, the final portion of the book contains a chart summarizing potential discovery sanctions, appendices for rules 26 through 37 and 45 of the Federal Rule of Civil Procedure, standard interrogatories and requests for production, and the ABA Civil Discovery Standards.


The book is not designed to be a quick read; rather, it is better utilized as a reference guide. The reader cannot quickly flip through the book without first becoming familiar with the book and its layout. Because significant changes to the federal rules occurred since the second edition, it would also be helpful if the authors periodically provided updates or supplements. On the whole, Discovery Problems and Their Solutions is an excellent guide for the pretrial discovery process and the typical and atypical thorny issues that arise.


Discovery Problems and their Solutions, Third Edition (ABA 2013), available at the ABA Web Store or by calling 1-800-285-2221.


Keywords: deposition, discovery, experts, sanctions, protective orders


 

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