Saving legal costs: DIY ‘discovery’

Law BooksIt’s a sad fact of life that ISPs and telcos sometimes end up in court cases.  The saddest fact of all is the legal bill that’s usually involved.

From a lawyer’s perspective, there’s a lot that clients can do to save time and money.  We’ll look at some key strategies in this series of posts.

Today, let’s look at the legal process of ‘discovery’, and why it needn’t add a small fortune to the bill.

What’s ‘discovery’ ?

At a certain point in a court case, there’s often a requirement that the parties ‘make discovery’ of documents.

That means they have to file with the court, and give to the other side, a complete list of all documents (relevant to the case) that they hold, or can get their hands on (e.g. held by their accountant) or that they used to hold, or were able to get their hands on.

That’s called ‘making discovery of’ or ‘discovering’ the documents.

There’s no choice about what you ‘discover’

Sometimes a court will order that discovery is limited to certain issues or kinds of document.  Save for those limitations, there are no exceptions to what must be discovered.

  • If it’s relevant, you must discover it.
  • If it harms your case, you must discover it.
  • If it helps the other side, you must discover it.
  • It it’s a ‘privileged’ document (e.g. legal advice from your lawyer), you must discover it.  (You can’t be compelled to let the other side see it, but you must discover it.)
  • If you used to have it, but don’t have it any more, you must discover it.
  • If it’s a computer file, you must discover it.

What happens after ‘discovery’ ?

Each side is entitled to inspect the other’s discovered documents, except for any that are privileged.

What makes discovery expensive ?

Frankly, many clients make it much harder and more drawn out than it needs to be.

  • They use expensive lawyers as paperwork clerks.
  • They drop off massive quantities of disorganised documents.
  • They forget that they became familiar with the documents one by one over weeks, months or years.  The lawyer is seeing most of them for the first time, at once, in a huge mass.
  • They let the lawyer figure out what everything is, instead of telling them.
  • They dribble documents to the lawyer over days, weeks or months.
  • They say unhelpful things like ‘you already have a lot of it’, when that involves the lawyer trawling through volumes of stuff that the client really could isolate into a single box if they wanted to.
  • They omit things without explanation.
  • They omit things that must obviously exist (e.g. emails that are referenced and partly quoted in other emails).
  • They provide undated materials and let the lawyer spend hours trying to figure out when it might fit in.
  • They assure the lawyer the documents are complete, and as soon as they are asked a single further question they say ‘Ah, yeah.  Then there’s all that other stuff.’
  • They don’t pay attention when the lawyer explains exactly what’s required.
  • They forward hundreds of emails to the lawyer, and let them make sense of what they are.
  • They email attached documents with meaningless file names like ‘scan9848Ax.pdf’ instead of ‘Contract of Sale of Shares.pdf’.

Not all clients do this.  Just most of them :-)

What if you don’t discover all relevant documents ?

  • If your lawyer picks it up, they’ll have to spend more time chasing – at your expense.
  • If the other side picks it up they can apply to the court for orders that you do it again.  If the court agrees, it normally makes you pay the other side’s costs of that application.  (Add a few thousand dollars extra to your expenses.)
  • If you later want to show an undiscovered document to the court to assist your case, it can say ‘Nope.  Won’t look at it.  Should have been included in the discovered documents list.’  That can lose you the case.
  • You might look dodgy, if the omissions seem deliberate.  That might lose you the case.

In really tough fights, one of the standard tactics for hurting the other side is to pick holes in their discovery and punch them up over it in court applications.  More delay, more cost, more gloom.

Best solution:  get discovery right the first time.

So how can clients help ?

  • First, listen to what’s being asked for.  Your lawyer will often suggest certain documents or kinds of document that they know / expect to be relevant.  Re-read this article as you go through the process.
  • Second, think hard and look hard.  Identify and locate every relevant document that is (or has been) in your possession or under your power or control.  (That means that you don’t actually have it but you could get it by asking.  A good example might be your tax return.  If it’s relevant but you don’t have a copy, you’d be expected to ask the ATO to supply one.)
  • Third, prepare a duplicate set of all available documents.  (Use paper, unless you have some brilliant system for using soft copies.  A library of complete, clearly named PDFs is good.  But if you can’t produce a clear, simple software ‘library’, stick to paper.)  Keep the originals very safe.  Keep them ordered and easily available.  But don’t give the originals to the lawyer until they ask.
  • Fourth, put the duplicates in the most sensible order you can.  It helps a lot.
  • Fifth, number them for identification.
  • Sixth, fill in a Discovery List like this one.  Lots of (relevant) info is good.  Do your best.  Often dates are uncertain and things aren’t cut and dried.  Give the best information and explanations you can.  It’s not a ‘photographic memory’ competition.
  • Seventh, deliver the table and a complete set of numbered duplicates to the lawyer.
  • Eighth, be sure to ask the lawyer (after they’ve had a look) whether you can do anything more.  Otherwise, they’ll assume that they are expected to work out any confusions and gaps (‘cos that’s how clients normally do it).
  • Ninth, if you find yourself thinking ‘This is such a load of **** !  Surely the lawyers can just do it for me’ – remember … yes, we can.  We certainly can.  It’s only a matter of time and money.

If you can get all this done really well and thoroughly, you’ll shave a big amount from your bill.

The process is often tedious, painful, frustrating and time consuming.  But it’s ‘free’ when you do it and pricey when we do it.

We still have work to do

The data and documents you provide need to be considered, including whether privilege applies.  It would be rare for a client to get the process perfectly right.  And the list of ‘discovered’ documents needs to be turned into a format that’s required by the courts.

So there’s still work for the lawyers to do on discovery, but not nearly as much.

About Peter Moon

Peter Moon is a commercial lawyer with 20 years experience in the tech and telco industries.
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