Discovery Plan (Litigation Checklist)

This discovery plan is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. Discovery is possibly the most frustrating, tedious, expensive, and time consuming part of the litigation process. It is also among the most important. It’s my sense that discovery is usually put off, delegated to the lowest possible level, or otherwise neglected. I think this presents a huge opportunity, as the party that properly develops a discovery plan and invests the time up-front to prepare for and execute that plan will generally enjoy a significant advantage. Below is my stock discovery plan, though this plan itself should be periodically evaluated and modified to best meet the needs of each individual case:
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Discovery Plan:
- Send litigation hold letter to client
- Identify evidence required for all elements of each claim, defense, and damages (as viewed from all sides of the case)
- Identify evidence on both sides that will require expert opinion, and develop Expert Discovery Plan
- Identify/brainstorm document and witness sources (known/potential/unknown) of each element of evidence required—this, along with information bearing on witness credibility, should identify the general scope of “Relevant Information” in the case.
- Discuss and set timeline for collection of all Relevant Information with client
- Discuss and set timeline/extension of time for filing initial disclosures, documents, necessity of a protective order, and exchange of privilege logs with opposing party as appropriate
- Consider using a modified Case Management Order to streamline or better organize discovery.  Negotiate stipulated modified case management order if possible, consider filing disputed modified case management order if appropriate.
- File proposed/stipulated protective order
- Conduct initial interview, as well as follow-on interviews with client/employees about knowledge of Relevant Information and location/nature of documents
- Bates label documents received from client
- Conduct single review of documents for:
-- (1) Privileged and work product documents
-- (2) Relevance
-- (3) Index documents by which element of claim, defense, damages, or credibility to which they pertain (i.e. document either relates to element, damages, or credibility or is not relevant)
- Make privilege log
- File initial disclosures
-- Motion to compel initial disclosures
- Identify non-parties that may have Relevant Information
- Interview non-parties regarding Relevant Information
- Issue subpoenas duces tecum to non-parties re: Relevant Information
-- Motion to quash subpoena
- Review opposing party’s initial disclosures and index by which element of claim, damages, or credibility to which they pertain
- Identify holes in Relevant Information and determine whether written discovery, depositions, or both will be used to address holes
- Identify what additional Relevant Information will be needed before trial in support or defense of motions for summary judgment, etc.
- Identify evidentiary issues regarding Relevant Information, make plans to develop needed foundation in discovery or prepare necessary objections to discovery
- Identify ideal order of discovery (i.e. which written discovery request do you want before certain depositions or vice versa, which discovery disputes need to be resolved before certain depositions, timing and nature of 30(b)(6) deposition, etc.)
- Confer with opposing party on depositions and availability of deponents
- Written discovery requests
-- Interrogatories
-- Requests for Production
-- Requests for Admission
-- Requests for Admission of Genuineness
- Responding to discovery requests
- Deciding whether to take video depositions
- When to consider depositions on written questions
- Notice depositions
- Notice 30(b)(6) deposition & “Exhibit A”
- Taking depositions
- Taking 30(b)(6) depositions
- Defending depositions
- Defending 30(b)(6) depositions
- Deposition objections & disputes
- Verification & corrections
- Continually update Relevant Information Index as discovery proceeds
- Discovery disputes
- Motion to Compel
- Motion for In Camera Examination
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Best Practices:
- Invest time up-front in developing a discovery plan and in following through on that plan—time spent on discovery early is generally a good investment.
[checklists and best practices for each of the steps in the discovery process can be found at the individual links above]
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.