Table Of ContentJames Publishing, Inc., Guerrilla Discovery, About the Author
Guerrilla Discovery
About the Author
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Ashley S. Lipson has been a practicing attorney and litigator for over 30 years. He is currently a lecturer, software designer and law
professor. He has taught at The Detroit College of Law, Michigan State University, Pepperdine Law School and currently at The University
of La Verne, School of Law.
He is probably best known as the creator and writer of the Objection! game series (the first computer games to be certified for mandatory
continuing legal education) and as author of the books Documentary Evidence (Matthew Bender), Demonstrative Evidence (Matthew
Bender), Law Office Automation (Prentice-Hall), and Is It Admissible? (James). He has developed the Lawyers' Comprehensive Computer
Document System and published 60 articles.
In addition to two undergraduate degrees in Computer Science (As.D.'s), Mr. Lipson initially received his B.A. in Telecommunications from
Michigan State University. He then received his J.D. degree from St. John's University Law School in 1970. Thereafter, Mr. Lipson earned
an M.A. in Mathematics from Wayne State University and an LL.M. from that University's law school.
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James Publishing, Inc., Guerrilla Discovery, About the Author
Guerrilla Discovery
About the Author
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Ashley S. Lipson has been a practicing attorney and litigator for over 30 years. He is currently a lecturer, software designer and law
professor. He has taught at The Detroit College of Law, Michigan State University, Pepperdine Law School and currently at The University
of La Verne, School of Law.
He is probably best known as the creator and writer of the Objection! game series (the first computer games to be certified for mandatory
continuing legal education) and as author of the books Documentary Evidence (Matthew Bender), Demonstrative Evidence (Matthew
Bender), Law Office Automation (Prentice-Hall), and Is It Admissible? (James). He has developed the Lawyers' Comprehensive Computer
Document System and published 60 articles.
In addition to two undergraduate degrees in Computer Science (As.D.'s), Mr. Lipson initially received his B.A. in Telecommunications from
Michigan State University. He then received his J.D. degree from St. John's University Law School in 1970. Thereafter, Mr. Lipson earned
an M.A. in Mathematics from Wayne State University and an LL.M. from that University's law school.
Copyright © 2014 James Publishing, Inc.
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James Publishing, Inc., Guerrilla Discovery, Dedication
Guerrilla Discovery
Dedication
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In memory of my former partner, Jerome S. Coleman, one of the most skillful and persuasive gentlemen who ever practiced law.
Copyright © 2014 James Publishing, Inc.
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James Publishing, Inc., Guerrilla Discovery, Acknowledgments
Guerrilla Discovery
Acknowledgments
The author and publisher wish to thank and acknowledge all of those readers who have, over the years, taken time to provide helpful
feedback, suggestions, comments, and information, all designed to make Guerrilla Discovery the most comprehensive and beneficial
single volume involving the discovery process. Individuals to whom we wish to provide particular thanks include, but are not limited to, the
following: Attorney Paul A. Romano of Sugar Land, Texas, Professor Anita Stuppler of Los Angeles, California, Professor Kevin Marshall of
La Verne, California, and Eric Kelly.
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James Publishing, Inc., Guerrilla Discovery, Acknowledgments
Guerrilla Discovery
Acknowledgments
The author and publisher wish to thank and acknowledge all of those readers who have, over the years, taken time to provide helpful
feedback, suggestions, comments, and information, all designed to make Guerrilla Discovery the most comprehensive and beneficial
single volume involving the discovery process. Individuals to whom we wish to provide particular thanks include, but are not limited to, the
following: Attorney Paul A. Romano of Sugar Land, Texas, Professor Anita Stuppler of Los Angeles, California, Professor Kevin Marshall of
La Verne, California, and Eric Kelly.
Copyright © 2014 James Publishing, Inc.
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James Publishing, Inc., Guerrilla Discovery, Chapter 1 Fundamental Overview
Guerrilla Discovery
Chapter 1 Fundamental Overview
For most cases, discovery isn't merely a component of the litigation, it is the litigation.
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§1.10 Introduction
This comprehensive treatise is designed for use by all civil practitioners, state and federal, plaintiff and defendant, young and old. The
strategies, checklists, forms, examples, and extensive annotations are designed to provide both specific information and general strategies
to guide litigants through the often complex and time-consuming process that we commonly label "discovery."
In the overall scheme of things, litigation is discovery. Whether or not a case settles, succeeds at trial, or is dismissed prematurely,
depends heavily upon the success or failure of the respective discovery campaigns. Experienced trial lawyers already know this, but
transactional attorneys should also be aware that in today's litigious environment, discovery is a force to be reckoned with and anticipated,
even while providing counsel for those matters once considered unrelated to the litigation process. Skillfully drafted instruments are
designed to avoid litigation, to be sure; but they must, nevertheless, be tailored to deal with the litigation contingency. And with litigation, of
course, comes discovery. This continuing prospect of discovery requires that non-litigation clients be adequately counseled about the
manner in which their information should be generated, retained and disposed of. Thus, the subject of Discovery should be of interest to all
practitioners. And even though there is no "legal" obligation to conduct discovery, 1litigating all but the simplest matters without doing so is
next to unthinkable.
Simply put, discovery is a compulsory process wherein litigants are forced, by court rules and orders, to hand over private information to
people whom they do not like. It will always be a contentious process for that reason alone. And despite every call for civility and gentility, I
have yet to witness or conduct discovery that has been totally free from some form of coercion or confrontation. Conflict can only be
avoided by those willing to lay down and surrender their cases or accept as complete, the minimal crumbs that skillful attorneys habitually
toss out during preliminary skirmishes. Discovery has been and always will be a quarrelsome undertaking. The judge-monitored courtroom
skirmishes that we call trial are often mild by comparison.2
Historically, the rules drafters have periodically attempted to moderate the conflicts that are inherent in the discovery process. They are,
however, naive to think that attorneys, who have been both trained in law school and rewarded in practice for aggressive advocacy, are
suddenly going to become dormant during the most critical phases of the litigation process.3That simply will not happen. Indeed, even our
canons of ethics would condemn casual representation.4
As a general observation, the attempts to patch and fix the system and get rid of its antagonism through rules amendments have had a
reverse effect. New rules designed to curb the hostility have accomplished little more than providing new battlefields for filing hostile
motions.5And, in keeping with past performance, in all probability, future discovery rules are going to make matters more, not less,
contentious.6
Politeness, professionalism and common courtesy are, of course, a must. But our system is adversarial, nevertheless, so say what you will
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James Publishing, Inc., Guerrilla Discovery, Chapter 1 Fundamental Overview
about civility. "In the end," Thomas Hobbes said, "clubs are trump." Defeat or be defeated.
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§1.20 Contents
Please take a moment or two to review your Table of Contents. You may see some structural features that are specifically designed to
assist your rapid access to information. Notice that the Table does not consist of a bunch of random discovery-related topics. Rather, it is
logic-based and decimal-structured as is the remainder of the treatise and its accompanying materials. Despite its austere organization,
the book is packed with visual assistance in the shape of timelines, checklists, heavily annotated rules (state and federal), charts, forms,
samples, examples, and cautionary instructions, all designed to lead you through the uncertainties of battle.7
There are three parts. The first consists of Chapters 1 through 3, which cover the broadest range of discovery-related topics. They are
designed to provide rapid information from a variety of entry points. It is recommended that you read the material contained in these
preliminary chapters, especially Chapter 1, which deals with basic strategy.
The second part is device oriented. Regardless of our court system, state or federal, there are six basic discovery weapons or devices (i.e.,
Requests for Admissions, Interrogatories, Notices for Production, Requests for Inspection, Demands for Physical and Mental
Examinations, and Depositions). Each has its own chapter (i.e., Chapters 5 through 10). Chapter 4 provides an overview for those
chapters, together with weapon-selection strategies. Chapter 11 covers subpoenas.
Notice that all of the Weapons Chapters are similarly structured. The first few sections of each of those chapters address the basics. The
fourth section of everyWeapons chapter presents the applicable rules.
Notice that after each of the Rules sections in the second part, there is a section involving Responses,8and thereafter another involving
Enforcement. This order represents the normal chronology of the discovery process (i.e., Submission, Response, Enforcement). When
studying each weapon, it is presumed that you will, at some point, require information for each of these procedures. But even if you
happen to be a very specialized associate who does nothing other than submit discovery requests, nevertheless, before preparing your
demands, you will certainly want to be prepped for the chess moves that must follow your assaults. The Response and Enforcement
sections are, therefore, no less important for the development of your initial submission strategy.
The last part is designed to provide detailed rules, strategy and information pertaining to available defenses to discovery.
Thereafter, all conceivable defenses to all forms of discovery requests are logically grouped into four chapters (Chapters 13 through 16).
Chapter 13 groups together those defenses that relate to the defined limits or scope of the discovery process. Chapter 14 is devoted
entirely to the Work Product Doctrine, while Chapter 15 gathers together all of the defenses relating to every type of privilege except the
privilege that relates to the Work Product Doctrine. Chapter 16 provides information and authority for seeking protective orders and
sanctions, while exposing the abuses of your enemy. Chapter 12 focuses on response strategy in general. It contains a single unique form
that provides language for every known defense to every discovery request.
The treatise will be supplemented and improved annually. It is designed to serve you. If you feel that any topic, subject or relevant item of
information has been omitted, please do not hesitate for a moment to e-mail me personally at: [email protected].
§1.30 Scope And Range
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James Publishing, Inc., Guerrilla Discovery, Chapter 1 Fundamental Overview
Comprehensive Subject Matter
The purpose is to create a one-stop arsenal for all of your discovery needs; a single volume that would contain or lead you to everything
that might be required to plan, conduct or defend a discovery assault.
Federal/State And Civil/Criminal
There has been a steady, noticeable tendency toward uniformity at both the federal and state levels,
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with the Federal Rules of Civil Procedure leading the way. Throughout this treatise, they are relied upon heavily, but not exclusively. The
federal rules have provided, and continue to provide, a model for most of the states. An effort has been made to cover the fifty states
individually, to the extent that it is practical to do so.
Historically, some of the larger jurisdictions such as California and New York blazed various discovery trails with language that was later
incorporated into the federal rules. If you were to check the rules of your particular state courts, odds have it that you will encounter great
similarity.
Civil litigation is certainly the focus of the treatise. However, because discovery in criminal cases is limited and relatively uniform, discovery
with respect to criminal prosecutions will also be covered. To omit such matters would create a void and would neglect some important
civil-related strategy for those matters that might involve both civil and criminal consequences.9
§1.40 Goals And Targets
Any analysis that purports to discuss the purposes or goals of the discovery process must distinguish plaintiffs from defendants. Their
respective strategies will vary significantly.
Plaintiffs bear the burden of proof. They must be concerned with the accumulation, assembly, preservation and perpetuation of
information, exhibits and evidence to sustain their burden of proof. Without the evidence, they lose. Defendants share this same basic
concern to be sure, but unlike the plaintiffs, they have often have an innate desire to demonstrate a lack of information. For the defendants
in general, it is often this lack of evidence which results in a stand-off, followed by a defense victory.
When the plaintiff fails to satisfy its burden of proof, the judgment must be for the defendant. Verbal battles may rage forever over who,
generally (i.e., plaintiff or defendant), is more greatly benefitted by the discovery process. But one thing is clear, every case can be
defended without the benefit of discovery. A similar statement cannot, normally be made from the plaintiff's end. For, many cases would
never reach the door steps of the court without evidence gained throughout discovery.10With this in mind, here is our comprehensive list
of goals:
For Both Plaintiffs And Defendants
1. Capture and preserve evidence and information necessary to establish your claims or defenses. The term "discovery" is a
partial misnomer insofar as it implies that you are totally unaware of the evidence needed to establish your claims or
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James Publishing, Inc., Guerrilla Discovery, Chapter 1 Fundamental Overview
defenses. In most cases, you can identify the most important targets of your search before the discovery process ever
begins. Establishing your claims and defenses should be a primary goal.
2. Secure admissions. The admission is the single most powerful dispute resolution device known to mankind. There is no
better way to settle a dispute once and for all. An admission by the enemy is undisputable, incontestable, admissible
evidence. 11Admissions may be obtained by using a combination of available discovery weapons.
3. Settle issues and disputes. The discovery process is much more than a "learning tool." It should be conducted with the
notion that it is the litigation process itself. It is wise to think of the discovery process as a piecemeal trial of the entire action.
Many consider discovery to be a substitute for the trial.12
4. Impeach the enemy and its key witnesses before they ever make it to the court house steps. Depositions and
interrogatories can effectively
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be used to attack enemy strongholds early in the battle. Even if you cannot achieve complete direct impeachment during the
discovery process itself, you may, nevertheless, be able to generate enough testimony to later construct a set of enemy
inconsistencies during trial.13
5. Perpetuate important testimony. Favorable witnesses sometimes forget, have a change of heart, become senile, move
away or even die. Do not wait to secure important testimony. Capture and perpetuate the information while it is available, and
more importantly, while it is fresh.14
6. Identify enemy witnesses. One of the most important aspects of the discovery process involves the identification of
opposing witnesses, both expert and lay. Discovery's primary historical purpose was the avoidance of the "surprise" element
by requiring the disclosure of relevant information pertaining to witnesses, including the nature and substance of their
proposed testimony.15
7. Learn what the enemy is hiding. There is still a place for "discovery" in the discovery process. Surprises occur more often
than not. Much may depend upon your skill and persistence. 16
8. Learn what the enemy has on you that you do not know about. Clients are often reluctant to highlight the weakest links in
their cases. For that reason, the enemy is often the best source for detecting the weaknesses and problem areas with
respect to your client's claims and defenses.
9. Feel out the enemy attorney. Discovery provides an opportunity for those preliminary skirmishes necessary to enable you
to familiarize yourself with the personality, style and techniques of the enemy. Most importantly, obtain clues as to the
enemy's resolve with respect to what it will and will not accept in the way of your answers and responses.
10. Authenticate your key documents. Do not wait until the pre-trial exchange of exhibits to lay foundations for your key
documents. Whereas you may withhold impeachment documents until a later date, not so with respect to writings that are
needed to establish your case in chief or principle defenses. Those documents should be authenticated early in the
discovery game. 17
11. Acquire any helpful information that may lead to the discovery of admissible evidence. Discovery efforts need not be
directly related to admissible evidence. As long as the information you seek is calculated to lead to such evidence, you are
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