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How to Avoid Being a Discovery Pushover

November 24, 2014

Fenwick & West electronic information management chair Robert Brownstone was quoted in a Law360 article discussing strategies attorneys can employ to offset a bullying opposing counsel who makes burdensome and excessive discovery demands.

Brownstone championed the importance of seeking compromise. He cited a couple of court decisions issued a decade apart that support this approach.

In 2002, Dell Inc. was ordered by the U.S. District Court for the District of Delaware to turn over its senior executives’ records in a patent infringement case. In a later case, the U.S. District Court for the Southern District of New York refused KPMG Inc.’s bid to limit the scope of its preservation obligations in a Fair Labor Standards Act case. In both instances, the judges cited the defendant’s refusal to compromise as a factor in ordering the contested obligation.

“Judges over time have come to expect more cooperation in discovery,” Brownstone noted.

Other strategies recommended in the Law360 article include anticipating what documents might be asked for and knowing what information is available; using discovery rules and sanctions to pressure a pushy adversary; crafting thoughtful replies when baited through written communications; and picking which battles to bring to the judge.

The full article is available through the Law360 website (subscription required).