Every United States court permits
full discovery, including complete production of all documents that have any potential bearing on the issues before the court. This means that both parties can be required to turn over all documentary evidence (including digital records and e-mails) regardless of whether the evidence supports or harms the other side’s case. The trick is that you have to ask for it in the right way. If you don’t use exactly the right words to describe what you want, you won’t get what you need. The responding lawyer will justify a decision not to produce a record on the basis that it was not properly identified and therefore not properly requested. The converse problem is asking for more than you really need. In this age of digital records and e-mails, a simple request could generate tens of thousands of pages of records and totally inundate you and your lawyer. Lawyers sometimes gladly produce such large volumes of records just to harass the other side or to bury an important document hoping that it might not get found if it is tucked in the middle of thousands of other documents.
The bottom line is that if you’re not careful to request what you really need--and to describe it accurately so there is no wiggle room for the other side to claim you failed to ask for it--you will show up for court totally unprepared. If you ask for too much, you’ll waste a lot of time and money developing your case. The best lawyers know exactly where this line is drawn, but unfortunately there are many lawyers who do not. Missing the line either way can be disastrous. That’s why you and your lawyer need a clear strategy and game plan for achieving the best possible result. Planning is everything. Without a plan that defines your objectives and focuses your efforts, you have no chance to win your case. If you spend too much money, even “winning” the case means losing it.
Join me next week for Step eight in how to win a lawsuit – The Proper Use of Interrogatories
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