Discovery Process Checklist

Responsible attorney works through the operative pleading element-by-element and notes which facts are admitted, denied, or contested. Identify affirmative defenses raised in the answer that will require their own discovery (e.g., failure to mitigate, statute of limitations, comparative fault).

List every likely custodian by name and role, plus systems where their data lives — email, Slack/Teams, file shares, mobile devices, cloud apps, departed-employee archives, third-party vendors. Missed custodians are the single most common eDiscovery sanctions trigger.

Use FRCP 26(b)(1) proportionality factors (amount in controversy, parties' resources, importance of issues) to scope review. Confirm budget with client before incurring vendor costs — Relativity hosting fees alone can run five figures monthly on a mid-size matter.

Send written hold to every identified custodian and to IT/records. Describe the matter, scope of relevant materials, and the duty to suspend auto-delete (email retention, Slack message expiry, mobile device wipes). Track acknowledgments — under Zubulake and progeny, an unacknowledged hold is a weak hold.

Coordinate with client IT to disable retention policies on M365/Google Workspace mailboxes, Slack/Teams channels, and any ephemeral-messaging apps for affected custodians. Document the date and exact policies suspended — FRCP 37(e) sanctions turn on whether ESI was lost because reasonable steps weren't taken.

Interview each key custodian about where their relevant materials live: personal devices used for work, prior laptops, USB drives, personal email used for business, departed-team archives. Memorialize in a custodian questionnaire signed by the custodian.

Log who collected what, when, by what method (forensic image vs. targeted export), and where it now lives. This log is the firm's defense if a spoliation motion is filed later.

Walk the client through the discovery the firm intends to seek and what the other side is likely to seek from them. Surface privilege concerns (in-house counsel communications, joint defense), trade secrets, and any third-party data that may trigger notice obligations.

Cover production format (TIFF + load file vs. native), metadata fields, search terms or TAR workflow, deduplication, family preservation, FRE 502(d) clawback, and rolling production schedule. A signed ESI protocol prevents most format fights at production time.

Submit the joint discovery plan to the court within the timeframe set by the scheduling order (typically 14 days after the Rule 26(f) conference in federal cases). Confirm proposed deadlines align with the court's standing order before filing.

Stay within FRCP 33's 25-interrogatory limit (counting discrete subparts) unless the scheduling order expands it. Tailor contention interrogatories to the specific elements and defenses in play; boilerplate sets draw boilerplate objections.

Use defined terms and a relevant time period — overbroad RFPs invite proportionality objections under amended Rule 26(b)(1). Cross-reference the ESI protocol's search terms so the production scope is anchored to something already negotiated.

Calendar both inbound and outbound deadlines (FRCP 33/34: 30 days from service, plus 3 if served by mail). Set 21-day, 7-day, and 3-day ticklers for the responsible attorney and paralegal. Missed response deadlines waive most objections.

Draft objections with specificity — generic boilerplate is treated as no objection at all in most districts. For each request, state whether responsive materials are being withheld on the basis of an objection (Rule 34(b)(2)(C) requirement).

Load collections into Relativity, Everlaw, DISCO, or Logikcull. Confirm dedupe across custodians, family threading, and OCR coverage. Validate that processing exceptions (corrupt files, encrypted containers) are logged and triaged before review begins.

Contract reviewers or associates code for responsiveness against the agreed search terms or TAR seed set. Run QC samples (typically 5–10%) reviewed by a senior associate before second-pass privilege review begins.

Two-attorney sign-off on every privilege call. Privilege log entries must identify author, recipients, date, subject, and basis (attorney-client vs. work product) with enough detail to allow opposing counsel to assess the claim. Confirm the FRE 502(d) order is entered before producing.

Bates-stamp and apply Confidential / Attorneys' Eyes Only designations per the protective order. Verify load file matches the ESI protocol's metadata field list. Send via secure transfer with a written cover letter listing Bates ranges and any withheld families.

Distinguish fact witnesses from Rule 30(b)(6) corporate designees. For 30(b)(6) notices, draft the topic list with specificity — vague topics invite objections and limit your ability to bind the corporation. Confirm the 7-hour-per-deponent limit and any expansions in the scheduling order.

Build the outline around the elements you need to lock in or impeach. Pre-mark exhibits in deposition order; coordinate with the court reporter on remote-deposition exhibit-sharing platform (typically Veritext Exhibit Share or Esquire's tool).

Two prep sessions minimum: one walking the witness through their documents and likely topic areas, one mock with the lead attorney playing opposing counsel. Cover the standard pitfalls — guessing, speculating, fighting the question, talking outside the document.

Within two weeks of receiving the transcript, build a topic-indexed digest with citations to page:line. Flag impeachment material and admissions for the trial outline. Confirm errata are submitted within the 30-day Rule 30(e) window.

Most districts require a documented meet-and-confer before any discovery motion. Memorialize the dispute, the position of each side, and the date of the meet-and-confer in a letter to opposing counsel before filing.

Attach the meet-and-confer correspondence, the disputed requests and responses, and a Rule 37 certification. Comply with local page limits and chambers rules on letter-briefing vs. full motion practice — many districts now require pre-motion letters for discovery disputes.

Magistrate judges hear most discovery motions. Bring the disputed requests, responses, and any in-camera material in a binder. Be ready with proportionality math (volume, cost, relevance to claims and defenses) — that is the framework most judges apply post-2015 amendments.

Lead attorney produces a written case assessment after discovery closes — claims and defenses scored on the evidence developed, witness credibility, exposure range, and settlement posture. This is the document that drives the next mediation or trial-prep decision.

Pull from the review platform the documents marked Hot or Trial during review. Verify each has been produced (with Bates) — exhibits not produced in discovery are typically excluded at trial absent a substantial-justification showing.

Exchange witness lists, exhibit lists, and deposition designations at least 30 days before trial unless the scheduling order says otherwise. Counter-designations and objections are due 14 days after — calendar both deadlines on issuance.

Lead attorney confirms the exhibit binder, deposition designations, witness order, and any outstanding motions in limine are complete. This is the final discovery-side gate before trial prep proper takes over.