#1 Pretrial Agreements – Communication Technology

01 Communication AgreementDiscovery Disputes Will Be Resolved with a Phone Call Between Lead Counsel.

One of the most counter-productive litigation activities is the discovery dispute letter.  Lawyers write these multi-page, single-spaced tomes not for the purpose of working out discovery disputes, but to create a record for an eventual motion to compel.  Such a letter typically generates a response in kind from opposing counsel, and then a reply, then a sur-reply.  In short, the parties draw battle lines instead of working toward an agreement.

Counsel should not engage in discovery disputes for the purpose of engaging in discovery disputes.  Instead, counsel should raise a discovery issue with the other side only when it involves documents or testimony which are really needed for trial of the case.  It is always more efficient to obtain such evidence by agreement than by motion.  An agreement is also a quicker and more certain method of obtaining evidence.

If your goal is to get evidence quickly and efficiently, then you should eschew letter-writing and the posturing that goes with it.  A phone call typically will bring much better communication, more civility, and better results than an exchange of letters.

The phone call should be between lead counsel.  More experienced lawyers are simply more capable of quickly sorting out what’s important from what is not.

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2 Responses to #1 Pretrial Agreements – Communication Technology

  1. Pingback: Pretrial and Trial Agreements - Saving Money Through Thinking and Planning : Day On Torts

  2. Sharon says:

    Great idea; however, — the big question, is what do we do when our opposing counsel just ignores the requests and simply will not produce the documents. Worse yet, some courts really require everything to be produced, and other courts don’t really require anything substantive to be produced.
    We really need predictability regarding what breadth will be required — will it be all or really nothing substantive. Looks like the “all” was historically intended; however, in practice we all know that is not what happens in court. We get results more like the essentially “none.” Further, the problem can be, in one court it may be what seems to be an “all,” order, but in reality if they still do not produce, we may still get “none.” Often the judge gives us essentially “nothing” (i.e., not really requiring production of anything substantive that is really needed). Look at the cases–we see some cases where essentially the “all” is required to be produced — then you file your motion to compel, you get to court and you have a judge who really won’t enforce or require anything, really.

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