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The Role of the Discovery Plan in Trust & Estate Litigation

September 13, 2011

Once litigation has been initiated (a petition/complaint filed and served), one of the first aspects of managing a case is creating a “discovery plan.” The first step in creating a discovery plan is to analyze what needs to be proved, with respect to our case and the opponent’s case. The goal of discovery is to obtain evidence necessary to evaluate the case and prepare for settlement and trial. Besides obtaining critical evidence, conducting discovery early, at the outset of a case, allows us to constantly advise the client of the strengths, weaknesses, and likely outcome of the case.

The scope of information that can be discovered is construed liberally to include non-privileged information that is itself admissible evidence or reasonably calculated to lead to the discovery of admissible evidence.

Depending on the facts of each case, when developing a discovery plan we consider using the following discovery “tools.” First, depositions can be noticed for critical witnesses. A deposition is the examination of a witness under oath. Second, written discovery can be served on parties, requiring the opposing party to provide written responses under oath. Written discovery may consist of interrogatories (written questions), requests for admissions (admitting the truth of a fact or the genuineness of a document), and requests for production of documents (demand for production of documents in the possession of the opposing party). Third, we frequently use business record subpoenas to obtain documents from nonparty witnesses.

In trust and estate cases, discovery presents unique challenges. Some of these are whether an individual with cognitive impairment should be deposed, whether medical or financial records are protected from disclosure by the right to privacy, and whether the attorney-client privilege has been waived so that an attorney’s file is “discoverable.” Because these difficult issues often take several months to resolve, identifying them early in the discovery process ensures that we are prepared well in advance of trial.

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