Regardless of the size of the case the system is the same. Larger cases may allow more sophisticated discovery but the system and the fact that you need an exhibit, witness or admission on each element is constant. It can also be useful to list the evidence the other side will have on each of the relevant elements. It is at this point you will see a definite direction for your discovery needs. Which eyewitnesses do you need to depose? Do you need to do it in person or can you use a telephone deposition or interactive video deposition to save expense?
You need to design the plan to gather the facts. Perhaps a request for admission will meet your need. It is a powerful tool which, if relevant, results in admissible evidence which is “conclusively established”. Rule 36 NDRCivP. If a fact is not admitted and later is proven at trial and the opposing party did not have a good faith reason to refuse to admit, costs of proving that fact can be assessed against that party. Rule 37 NDRCivP. Review the discovery rules periodically and it will help you select the most efficient means to establish the facts for your case.
USE THE PLAN
After you have identified the elements and planned how you are going to prove each one, you need to use the plan. Ask focused interrogatories so you do not need to wade through a bunch of garbage the other side provides in response to your request for a garbage dump. That is what you will get if you did not know what documents and questions you needed to ask them to produce or answer. Request relevant documents, not “please produce everything relevant to this case”. Without a doubt, you will get no meaningful response to this request and a judge will not be ready to help you get it.
Once you have a plan you can set some deadlines and consider relevant motions. Propose a discovery schedule. The other side is under an obligation to participate in good faith in framing a discovery plan. Rule 26 (f) NDRCivP. With this plan your discovery will move forward efficiently and in a timely manner. You will no longer simply be
reacting to the other side's discovery and your discovery will have a point.
REEVALUATE
As discovery continues you may run into a new theory or defense. No problem - as you are ready to simply REPUR that theory or defense.
I just hate it when I run into another party who has a discovery plan which is well thought out and directed. I know they have taken the time to analyze their case and know what it is they need. When you have the plan you can move the case along at your pace and according to your agenda. You can also reduce stress and conflict because, as most judges will tell you, the majority of discovery disputes arise from a lack of communication. If at least one of the parties has a direction in discovery, communication is enhanced. Keep your plan handy and refer to it often. When each of your necessary elements has admissible evidence listed under it you are ready to submit that Note of Issue and Certificate of Readiness with confidence, not fear that you may have missed something. This is a simple and basic plan. Now - just do it. I know my paralegal wishes I would use it more often.
Kent Reierson is a Partner in Crowley Fleck's Williston Litigation Department., Kent was previously in private practice in Williston since 1984 and concentrated in litigation, oil and gas law, and municipal law.
Kent is a former State's Attorney for Williams County and served 12 years as City Attorney for Williston. He clerked for Chief Justice Ralph Erickstad of the North Dakota Supreme Court.
Kent is a Civil Trial Specialist certified by the National Board of Trial Advocacy and has handled numerous jury and bench trials in state and federal courts, as well as appeals to the ND Supreme Court and the 8th Circuit Court of Appeals. Kent was a past Presient of the North Dakota Trial Lawyers Association (now NDAJ) and has been recognized by Best Lawyers in America for Personal Injury Litigaiton - Defendants (2014-2016), Chambers USA, Great Plains Super Lawyers-General Litigation, Energy & Natural Resources, and was recently inducted into the American College of Trial Lawyers.