Discovery: Problems and Their Solutions.

Discovery Problems and Their Solutions Paul W. Grimm Charles S. Fax Paul Mark Sandler ABA Publishing www.ababooks.org 467 pp., $65

Two experienced trial lawyers and a federal magistrate judge have combined their considerable talents to produce a concise, practical guide to dealing with federal court discovery problems. The text is in four sections: interrogatories, document requests, requests for admission, and motions for mental and physical examinations; depositions; experts; and sanctions and protective orders.

The authors effectively use a somewhat unorthodox approach: For each discovery problem, they begin with a realistic hypothetical fact pattern (many from the authors' experience) and then ask, "How should the court rule?" Citing relevant sections of the Federal Rules of Civil Procedure, case law, treatises, and other authorities, they analyze the question and end with a useful practice tip--sound advice to deal with difficult issues.

They consider such commonly encountered questions as how to frame proper interrogatories and document requests; what is the nature and extent of permissible discovery of computerized information; who can attend a deposition; when to take the deposition of a testifying expert; what communications with a testifying expert are discoverable; and how to create a proper record before filing a motion to compel discovery. The authors also tackle topics that trial lawyers confront less often: inadvertent disclosure of privileged material; misconduct of counsel at depositions; discovery of communications with jury consultants and focus group advisers; and ethical considerations in representing a corporate client's employees at depositions.

A good example of the approach is their discussion of the interplay between Rule 26 (a) and Rule 37 (c). They posit this hypothetical: Trial is scheduled to begin in two weeks. Plaintiff counsel has just advised defense counsel that the plaintiff intends to ask the court to allow her to supplement the list of trial exhibits to include records from the treating physician. These records would support her claim that the defendant's negligence prevented successful intervention in the treatment of her cancer.

Defense counsel objects, saying these new documents were not listed in the plaintiff's Rule 26(a)(1) initial disclosures, not identified in the plaintiff's Rule 26(a)(3) pretrial disclosures, not identified or produced in response to the plaintiff's document request, and not disclosed in a timely Rule 26(e) supplemental disclosure. Also, the deadline for supplementing Rule 26(a) disclosures has passed. Defense counsel argues that his case is severely prejudiced by plaintiff counsel's last-minute maneuver. He asks the court for a preclusive order and sanctions.

How should the court rule?

The authors detail the applicable provisions of Rules 26(a)(1) and (3), Rule 26(e)(1), and Rule 37(c), including references to treatise authorities, commentary to the 1993 rule changes, and relevant case law from different circuits.

The authors' conclusion: Plaintiff counsel should have disclosed these documents well before the eve of trial, in the plaintiff's Rule 26(a)(1) initial disclosures and Rule 26(a)(3) pretrial disclosures, in supplemental disclosures under Rule 26(e), and in response to the defendant's Rule 34 document production request. Since plaintiff counsel violated these rules, Rule 37(c)(1)'s automatic exclusion prevents the plaintiff from using the documents at trial unless the court determines that the failure to disclose is substantially justified or harmless.

Here, it seems unlikely that the plaintiff can show harmlessness because the evidence concerns an important issue and the trial is near. Unless the court postpones the trial and reopens discovery, prejudice to the defendant cannot easily be overcome. Whether the plaintiff can establish substantial justification for the failure to disclose will depend on the reasons for the prior nondisclosure, including when she first became aware of the documents. If that explanation is weak--or if the court believes there was bad faith or willful misconduct--the plaintiff will lose.

The authors follow this sound analysis with a list of six practice tips to minimize the risk of Rule 37(c) sanctions, providing substantive advice about checking the scheduling order, periodically reviewing the Rule 26(a) disclosures and other discovery responses to determine if they require supplementation, reviewing Rule 26(a)(3) pretrial disclosures, reviewing the opponent's Rule 26(a)(3) pretrial disclosures, keeping a copy of written discovery responses and required disclosures readily available at trial, and handling motions to preclude evidence under Rule 37(c)(1).

The authors also give how-to lists and charts, including checklists for posing proper deposition objections, preparing expert deposition questions, and preparing to file or respond to motions to compel discovery. They provide dos and dont's in initiating and responding to discovery; a model privilege log; and a chart summarizing discovery sanctions.

The book includes four appendices, containing the Federal Rules of Civil Procedure applicable to discovery; discovery guidelines in the District of Maryland; standard interrogatories in the District of Maryland; and the ABA Civil Discovery Standards with August 2004 amendments.

Discovery Problems and Their Solutions is an excellent resource for less experienced trial lawyers learning how discovery rules work, and for more seasoned trial lawyers confronting more unusual, and sometimes vexing, discovery issues.

STEWART I. EDELSTEIN, a trial lawyer at Cohen & Wolf in Bridgeport, Connecticut, teaches trial practice at Yale Law School.