There are lawyers who complain that the discovery process is an expensive and arduous endeavor that rarely sheds any new light on the facts of the matter. These lawyers sometimes advocate limiting or even abolishing certain aspects of discovery. They think that discovery is usually more trouble than it's worth. My experience, along with continued (and often increasing) investment in e-discovery processes and solutions by legal departments found in a Bloomberg BNA and Catalyst Repository Systems survey, paints the opposite picture: discovery brings the facts into the light of day.

Why Lawyers Object to Discovery

Some lawyers' negative view of discovery results from conducting it the wrong way. Done properly, discovery almost always adds to our understanding of cases and, by giving the parties more information about the truth of the matter, leads to more just outcomes. Truth and justice are intertwined in the law.

So how can we get better results from discovery? Most importantly, attorneys must be more targeted in their efforts and persist until the other side complies. The usual objection to discovery—that it is a “fishing expedition”—doesn't apply when you are targeted. But targeted discovery isn't as easy as shooting fish in a barrel: It is often met with strong resistance, especially when you demand genuine compliance and not the sort of half-measures (if that) which usually count as responding to discovery.

When Discovery Hatred Leads to Subpar Response

Regardless of one's attitude toward discovery, in general, we almost all hate responding to it. It is tedious, difficult, invasive and seems to offer little upside. If you are the responding party, the optimal number of document requests to receive is zero. No one wants to turn over documents and data to their adversary.

As a result, responding parties often delay and evade, hoping to get away with the bare minimum. In my former practice, the initial response from opposing counsel to a document request usually consisted of a single PDF document of scanned pages with no searchable text. My opponents didn't even bother separating the different documents into individual PDF files. Sometimes I only received paper copies. These productions also seemed suspiciously incomplete: How could there only be 100 pages of responsive materials?

Rather than accept these subpar responses, it's more advantageous for attorneys (and their clients) to push for more. Use meet-and-confer sessions and motions to compel until the requested documents are obtained. Ramping up persistence in the discovery process led me to adopt two rules of thumb.

Rule 1: Initial Production Is Always Incomplete

To the first point, it is rare for an adversary to turn over the crown jewels on your first request. You have to work for it. If the production seems thin or appears to be missing items, it's time to confer.

Persistence does not entail aggression, however. Instead of asserting bad faith, ask questions. Find out how the other side collected, reviewed and chose the documents it provided to you. There is often a flaw in the process: Sometimes key sources of evidence (such as mobile devices or social media accounts) are overlooked; sometimes overly restrictive or poorly designed search queries are used. By engaging with your opponent in good faith (and showing that you care), you'll almost always obtain more documents, and they'll often be more interesting than the original set. There's often a reason documents don't get turned over at first: they are bad for the other side in some way, or perhaps just embarrassing.

Rule 2: Document Discovery will Eventually Produce Something Interesting

To the second point—that discovery almost always uncovers “interesting” documents—you only need to remember two concepts: technology and human nature.

With the help of technology most of us can't help but leave a copious trail of data every day of our lives, from location tracking and step counting to emails, photos and social media posts. The same goes for businesses and other entities, which have nearly as wide a variety of apps as individuals do, including workplace chat, collaboration tools and databases. Given that there are so many devices and applications tracking our behavior and activities, “interesting” data can and will be captured, from gossip, to unguarded comments, to more salacious materials.

As users of technology, we remain human—all too human—and we certainly haven't become angels in the workplace. This means that some documents that look bad, embarrassing or just weird will exist in every party's custody. Hence my rule of thumb: The other side has not adequately responded until you have received an interesting document.

Conclusion

The above rules of thumb are handy because they give you the incentive to keep digging, which, after all, is the only way to find evidentiary gold, so don't give up.

Jeff Kerr is a former litigator and now co-founder of case management solution CaseFleet.