Forging a Discovery War Chest

Build Early and Anticipate 

By meticulously preparing and rigorously organizing a case from the pre-suit phase through the final deposition, elite litigators set the stage for highly successful negotiations and trial verdicts.

The discovery phase of civil litigation is the most critical part of the pre-suit stage. As trial titan Keith Mitnik says, discovery involves being a "bodyguard" to protect your client and witnesses while simultaneously building a "war chest" of ammunition for trial. Pre-trial work is active trial preparation. Every deposition and evidence-gathering opportunity has a direct impact on case value, negotiation, and trial outcomes.

While courtroom performance commands the spotlight, the structural work of discovery — the identification, preservation, and strategic deployment of evidence — is where cases are genuinely won or lost. 

By laying out a clear strategy pre-suit, you can make early decisions about the exact evidence you need to pursue to prove your case, because every piece of evidence can raise or lower your case value.

Define Your Terms & Master Requests for Production 

Boilerplate discovery requests can be a liability.  Vague language invites objections, delays, and gaps in production that opposing counsel could exploit. Obtaining the right documents requires strategic thinking. Before issuing any request for production, invest the time to define key terms precisely.

Request the full spectrum of document types, particularly in commercial cases that require unraveling corporate structures to prove negligence: 

• Policies
• Procedures
• Checklists
• Inspection reports
• Maintenance records
• Emails, text messages, correspondence, and any communication not protected by attorney-client or work product privilege

Discovery in the Digital World

Electronically stored information can contain troves of substantive evidence: 

• Photographs taken on smartphones contain GPS coordinates, timestamps, and camera aperture settings that can directly rebut defense claims about altered or misleading images. 
• Request native file formats, not converted documents, to preserve embedded metadata. There is a meaningful difference between receiving a PDF screenshot of an email thread and receiving the original PST file. The latter reveals:
  • who sent what, when they sent it, who they sent it to 
  • whether any messages were deleted before production. 

Leveraging Requests for Admission 

Requests for admission are used to establish basic facts, such as your client holding invitee status on a property, which saves valuable time during litigation. They are useful, but underutilized, offensive tools for determining the defense’s line of reasoning and understanding the strengths and weaknesses of a case, as the opposing party must admit or deny a specific piece of information. 

If the defense attempts to offer vague responses or improper objections, follow up immediately and file a motion to compel better responses before you’re in front of a jury. Furthermore, these admissions are incredibly useful at the end of the discovery process for pinning down witness testimony and narrowing the issues of a case at trial. If a defense witness tries to contradict an admitted fact on the stand, you can immediately impeach their credibility in front of the judge and jury.

Depending on the jurisdiction, certain evidence is not only discoverable but also admissible. Ideally, both parties follow the rules of discovery and provide what is required by the law, or will be able to resolve discovery disputes without involving the judge. When it is necessary to involve the judge, make it clear that the defense has already been provided the case law and was asked to reconsider. If the defense objection is frivolous or egregious, it may be necessary to seek sanctions, which may include monetary fees against the attorney who filed the frivolous objections. Alternatively, if there is a pattern of bad-faith litigation, the court may consider striking pleadings.

Pro Tip: Motions in limine are pivotal in the pre-trial phase. Judges expect you to be prepared going into trial, having filed the appropriate motions to exclude or include specific pieces of evidence. By filing those motions, you’ve protected your client and given yourself a key advantage in the courtroom.

Expert Disclosure

Usually, the plaintiff will disclose experts first, and then the defense has 15 or 30 days to provide their counter designations or produce their experts. It’s important to understand the opinions of defense experts well in advance.

Each state will have an amount of information about a particular expert that is available to either party during discovery. Typically, it will be how many times a particular law firm has retained an expert, or how much money they have been paid by “agents of the defense” in the past. This is where the credibility of experts can be significantly attacked. If a radiologist or orthopedic surgeon was paid hundreds of thousands of dollars by the defense for these types of cases and litigation, and then has an opinion that differs from all other treating physicians, it will be clear to the jury that the expert is biased. 

The defense may disclose the position or opinions of a given expert in advance. Through the discovery process, you may uncover that an expert received key information from the defense only after that opinion was reported. Here are some key questions: 

• What information was provided to the expert by the defense? 
• When did the expert receive that information?
• Was the opinion of the expert formed before they reviewed the relevant information?

Countering Defense Tactics 

Defense may attempt to stymie the discovery process by objecting and refusing to turn over essential documents. Only when absolutely necessary, make the appropriate motions to compel and bring the issue to the judge. 

Spoliation is a strategic issue. When a defendant fails to preserve relevant evidence, it creates both a legal and a narrative opportunity. Send preservation demands early and in writing, covering all reasonably anticipated evidence: video surveillance, maintenance logs, digital communications, and inspection records.

If a defendant fails to preserve surveillance footage after a pre-suit preservation request, file a motion to seek jury instructions on penalizing them for the intentional destruction of evidence. Request adverse inference instructions so the jury may draw the most damaging reasonable conclusion about what the destroyed evidence contained. 

Prepare your client as thoroughly as the opposition

One of the most overlooked failure points in discovery is insufficient client preparation. Walk clients through the scope of what must be produced and why each category matters to the case. Prepare your client by explaining the rationale for each request.

Conduct a thorough document audit before responding to requests to avoid the need for embarrassing supplemental productions later on. Ensure that you are not in a situation where you’ve only provided some of the requested documents, because the client initially couldn't remember or couldn't find something. Itemize and log everything produced, maintaining records that demonstrate organized, good-faith compliance throughout the litigation.