Fundamentals of Discovery Motion PracticeBy Samuel A. Thumma
Discovery works best without judicial involvement. I have never met a judge who looked forward to dealing with discovery disputes. I am sure there are exceptions—particularly for evolving issues like electronic data—but they seem to be rare.
Every case involves discovery, and almost every case involves discovery disputes of some type. Wise counsel work hard to resolve such disputes before raising them with the court. How, then, should counsel proceed when at a true impasse on a material discovery issue that cannot be resolved without judicial intervention? Here I offer some suggestions, based largely on my time in private practice and, to a far lesser extent, my experience on the bench since May 2007 as a trial judge on the Arizona Superior Court. My comparatively short time on the bench has further reinforced some of my views on discovery disputes, clarified others, and provided context for new views that I do not recall having as a practitioner.
1. Be Prepared.
Know your filings, and know the opposing party’s filings. Know the key rules and cases, the issues in dispute, and the strengths and weaknesses of your positions. Try to anticipate and have answers for issues that may arise. In particular, have answers to the tough issues that are supported by law or fact (or, ideally, both).
For any hearing, take along the applicable rule book. Bring your trial notebook, including pleadings, key orders, contact information, and scheduling and related information. As a failsafe, take an extra file-stamped copy of the relevant filings to the hearing to show when and where filings were made (if necessary), and to provide to the court (if the judge has not received your filings).
On an even more basic level, make sure you know where the courthouse is located, where the hearing will be held, and the phone number for the court’s chambers. Some judges hold court in more than one location, and knowing where the judge will be for your hearing is essential. The best argument in the world will fail if you are in the wrong courthouse at the appointed time.
Similarly, an almost endless number of unexpected, unpredictable, and just plain weird contingencies can frustrate the best efforts to physically get to court. A train derailment, traffic jam, mislaid car keys, and other contingencies can prevent your prompt arrival to a hearing. Having the court’s phone number may be essential to inform the court of the situation and, if necessary, to request that a hearing be delayed briefly or that you be allowed to appear by telephone. Thoughtful preparation will help avoid turning a bad day into a very bad day.
2. Know What Is Required.
Courts have specific rules, local rules, standing orders, customs, and practices about what is required—and what is prohibited—in raising discovery issues with the court. For example, does the court want an attorney who is seeking to raise a discovery issue to call court staff to schedule a telephonic hearing? Does the court want the parties to submit short informal briefs or even letters on the issues? Is a sworn declaration that the parties met and conferred and are at impasse required? Is there some other specific requirement for a discovery dispute to properly be brought before the court? Knowing the answers to these and other procedural questions, in advance of seeking judicial intervention, will help you secure a favorable ruling and avoid embarrassment (or worse) if the court’s rules are not followed.
From the respondent’s perspective, if the other side fails to comply with technical requirements to properly raise a discovery issue with the court, what is an appropriate response? For example, if your view is that discovery will not be produced absent a court order, do you really want to object that the motion doesn’t attach a required certificate? Some reflective thought will help in guiding how to approach a discovery motion.
3. Know the Relief You Want.
The most basic question for any motion, response, or court appearance is identifying, with some specificity, what you want from the court. Do you want documents to be produced? Do you want the discovery deadline extended generally? Do you want to take additional depositions? Do you want limited additional written discovery? For a stipulation for additional time for discovery, do you want to keep open the possibility of another extension, or do you want to ensure that no additional extensions are granted? Do you want the discovery deadline reaffirmed? Do you want to preclude depositions? What alternative plan is in place if the court refuses to approve a stipulation?
Knowing the answers to these and other relevant questions, having authority to support your position, and being ready to intelligently address them in court will be extremely important to a client’s current and future well-being. All lawyers know, in a general way, what they want as a result of a hearing. But think in advance and with precision about what other impact your motion or opposition may have and what you really want to accomplish.
4. Know What You Need to Do to Obtain the Relief You Want.
A close corollary to knowing what relief you want is knowing what needs to be done to obtain that relief. For example, judges differ on whether they will rule from the bench or take a matter under advisement. If a ruling from the bench is sought, consider whether actions and approaches are facilitating or discouraging such a ruling. Do you really need to suggest that the court review documents in camera? Do you really need to provide the box of exhibits to the court at the hearing, or can three short documents—as examples—prove the point? The ability to help facilitate a quick and decisive ruling will turn on a variety of issues, including actions by opposing counsel, the judge’s inclination, and informed judgment by the attorney. What is clear, however, is that providing the court several inches of documents for the first time at a hearing and asking that the court consider those documents before ruling ensures that the court will not rule from the bench.
As another example, think carefully about information included in any proposed form of order. If a judge is favorably inclined to consider and, if appropriate, enter a proposed order submitted, the proposed order needs to properly reflect the relief requested. To increase the chance of the court entering a proposed order, it should not contain unnecessary or extraneous findings or text and should reflect the relief properly requested and supported. At times, it is tempting to provide proposed orders that deal with issues not directly involved and to seek factual findings that are not essential to the ruling or other peripheral matters. Doing so will substantially decrease the chances that the judge will enter the order and may also result in a delay in ruling.
5. Treat Court Staff like Gold.
Court staff—including judicial assistants, bailiffs, courtroom clerks, security officers, and others—are an integral part of how cases are handled. Court staff deal with scheduling and file preparation and handling, ensure that hearings proceed in a timely fashion, and address dozens of other issues that many attorneys do not appreciate. Listening and responding to issues raised by court staff is essential.
For example, on occasion, court staff will contact you. Such contacts are not done frivolously or at the drop of a hat but rather on an “as needed” basis to obtain missing filings, inform you of scheduling, and other issues. Wise lawyers respond to such contacts quickly and effectively and, in doing so, convey a message that they are on top of their cases, that their client’s issues are important, and that they recognize the importance of such contacts. By contrast, unreturned inquiries by court staff—or a failure to appropriately follow up—convey just the opposite message.
The approach used when lawyers interact with court staff also is important. Judges expect you to act appropriately in open court. Out-of-court contact with court staff similarly should be appropriate. If it is not, the judge will likely hear about it.
Listen very carefully to what opposing counsel says and what the court says. And listen to what isn’t said. At times, silence can be far louder than spoken words. To put it bluntly, don’t be tone deaf in court.
Keep opposing counsel true to the record and the facts, and correct the record when that does not happen. Listen carefully to questions and comments by the court, and react accordingly. Ideally, the court will be able to review in detail the parties’ briefs, understand the positions clearly, and prepare helpful questions. When appropriate and necessary, clarify and amplify the client’s position. Respond to questions when asked. Counsel’s primary purpose at any hearing should include addressing issues the court raises and offering appropriate information. By failing to address the court’s questions when asked, you miss a golden opportunity to persuade the court of the position’s merit. Avoiding a question by the court may also indicate to the court that there is no real answer, that counsel has no good answer, that counsel doesn’t want to answer, or that counsel doesn’t care about the court’s question, none of which will help the client’s cause.
7. Know When to Be Quiet.
Having taken the time to prepare notes or a more formal outline, it is tempting to make a record regardless of what the court says at the hearing. At times, however, the court may have indicated that it will rule in favor of your client. In that event, contemplate whether you want to risk the chance of a favorable ruling so that you can make a more robust record (with the chance that the court may hear something that will change its mind and rule against your position).
Tactically, know when to be at the center of a hearing, or when it is in a client’s best interest to be just a small part of a complicated, multiparty case. Attorneys generally want to be at the core of a case, and with good reason. But when representing a nonparty that has been served with a subpoena duces tecum by a party that is contemplating joining the nonparty, consider whether you want to start commenting on scheduling orders or other issues that only implicate parties to the case. Knowing when to be quiet can, at times, be the best representation an attorney can provide.
8. Address Mistakes Head-On.
As much as everyone hates to admit it, mistakes happen. Memories are imperfect. Deadlines may be missed. Dispositive cases are reversed or even overlooked. Litigation is an imperfect art. How mistakes are addressed can mean a great deal.
Owning up to a mistake head-on and proposing reasonable possible resolutions to work through the issue will allow you to have input in resolving an uncomfortable situation in a way that will not compromise your client’s position. Blaming opposing counsel or an opposing party—unless demonstrably attributable to them—is unlikely to help resolve the issue in a way that will be helpful to you and your client. Failing to acknowledge a mistake will, even worse, mean that you will have no voice in resolving the issue. Finally, if you value succeeding on behalf of your client—not to mention your license to practice law—don’t attempt to cover up a mistake. History is brimming with many instances where an individual tried to cover up a small mistake with disastrous results far exceeding any consequences that would have been imposed had the mistake been addressed at the outset.
9. Preserve Credibility.
Attorneys who do not shoot straight with the court lose credibility and undercut their effectiveness in representing their clients. Do everything you can to preserve credibility with the court. Enough said.
10. Be Prepared.
See #1 above.
ConclusionObviously, this list is unscientific, subjective, and omits many sage words in dealing with discovery motions. The primary point, however, is to be prepared. Not only will common sense, some research, and advance thought serve your client well, it will impress the court and send a message to all involved that you are ready for anything. Failing to do so may yield bad results in the short run and create future issues with the court and opposing counsel that will dwarf the issues raised in the discovery motion itself.
Samuel A. Thumma is a judge with the Arizona Superior Court.
- Michael J. Henke & Craig D. Margolis, The Taking & Use of Video Depositions: An Update, 17 Rev. Litig. 1, 13–14 (Winter 1998).
- Fed. R. Civ. P. 32(a)(3); Rojhani v. Meagher, 22 P.3d 554, 560 (Colo. Ct. App. 2000) (applying the Colorado counterpart to the Federal Rules of Civil Procedure).
- Stauffer v. Karabin, 492 P.2d 862, 866 (Colo. App. 1971); Scruggs v. Otteman, 640 P.2d 259, 261 (Colo. App. 1981).
- Johnson v. Bd. of County Comm’rs, 676 P.2d 1263 (Colo. Ct. App. 1984).
- F.R.C.P. 32(a)(6).
- See, e.g.,Spence v. Southern Pine Elec. Co-op., 643 So.2d 970, 972 (Ala. 1994) (stating that the trial court did not abuse its discretion by allowing excerpts of deposition testimony of two witnesses as demonstrative evidence during opening statements).
- Nos. CV-00-20905 RMW, C-05-00334 RMW, & C-06-00244 RMW, 2008 WL 190990, at *1 (D. Cal. Jan. 21, 2008) (slip copy.)
- No. 01-C-0177-C, 2002 WL 32349903, at *1 (D.Wis. Oct. 2, 2002).
- Koehn v. R.D. Werner Co., Inc., 809 P.2d 1045, 1050 (Colo. Ct. App. 1990).
- See Morgan v. Scott, 2006 WL 2457378 (Ky. Ct. App. 2006).
- See id. (citing Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675 (Ky. Ct. App. 2000)).
- Condella v. Cumberland Farms, Inc., 689 A.2d 872, 875 (N.J. Super. Ct. 1996).
- March 3, 2009 – Thank you, from a new lawyer. The great practical and organizational advice could not have come a better time