Tips for navigating discovery

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I had the pleasure of moderating a Maryland State Bar Association Young Lawyers Section Education Committee panel presentation Thursday night. Our topic: “Navigating Discovery as a Young Lawyer.”

It was a great panel, if I do say so myself. The organizers of the event did a great job of picking panelists —Magistrate Judge Charles Day and attorneys Kathleen Howard Meredith, Michelle Lipkowitz and Lisa Hall Johnson. And we had a great turnout.

The panelists were full of great tips on how to get a case started on the right foot. Some of the ones that I wrote down included:

• Take the time to outline all of the claims and defenses in the case at the beginning of the case, before starting to delve into discovery.
• Again, before starting discovery, take the time to get to know the client, how the client does business, where and how the client generates and stores documents and who the key people are (both in terms of the facts of the case and in terms of the client’s operations and document management systems). Visit your client’s place of business, if possible.
• Bring and use a translator — have someone who speaks the client’s language (or your IT contact’s language) with you at the beginning of the case.
• Get documents organized from the very start. Most panelists recommended keeping documents in both electronic and paper format, Bates labeling meticulously and making sure your electronic copy of documents is OCR’d.

In addition to the sample documents that we passed out, panelists noted some helpful resources:

• Extensive discovery-related forms are available in the federal court’s local rules (which are, Judge Day pointed out, located towards the back of the second volume of the Maryland Rules book, in addition to the court’s website).
• If you deal with discovery issues with any regularity, Chief Magistrate Judge Paul Grimm’s Discovery Problems and Their Solutions should probably be on your shelf.
• If electronic discovery comes up in your practice, check out Electronic Discovery and Digital Evidence, a casebook containing commentary from members of the industry standard-setting Sedona Conference Working Group on Electronic Document Retention and Production.

In terms of discovery practice itself, panelists emphasized the importance of always taking the high road when dealing with a difficult adversary.

Also, remember that, should motions practice become necessary, it is your job to educate the judge: do a good job. And don’t forget that judges figure out very quickly who they can trust (and who they can’t).

I could go on for pages with the various discovery-related tips, comments, and advice given by our panel. But if you want more details, visit the MSBA YLS’s website, where we will be posting a more detailed summary and some useful sample documents.  And come to our next panel.