Don’t Serve Discovery Unless You’re Willing to Go to the Mat: One Caveat

Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information.  I just need point out a single exception to this view:  discovery through depositions.

Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence.  But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).

Certainly depositions should not be an exercise in free association thinking.  Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish.  But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail.  I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.”  When it comes to depositions, I disagree.  Don’t be afraid to “fish.”

The most important skill in taking depositions is not asking clever questions, but listening.  Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic.  Why is it a sensitive topic?  We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully.  This take patience and persistence.

This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective.  But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way.  The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer.  That filter is generally missing in a deposition.

Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically.  While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer.  In other words, you have to dig deep to find the gold!