cbaReport-Nov12 - page 6

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November 2012 CBA REPORT
cover article
discovery or investigation regarding such
witnesses, and to have candid discussions
with the client regarding the impact of
such evidence.
The possibility also exists that a
third-party witness who is identified
in discovery may become a target for
a third-party complaint, or may ask to
intervene in the case as a real party inter-
est. Either of these situations likely will
require leave of court. It will be best to
have all interested parties ready for and
present at mediation, so consider that it
will take time to add a new party to the
case, and then for the new party to get up
to speed.
Assuming there are documents
identified in the parties’ initial disclo-
sures and/or initial discovery responses,
give special consideration to the inher-
ent intricacies of electronically stored
information. Get out in front of those
issues by developing an early plan for
any necessary follow up, with internal
deadlines geared toward mediation or
the settlement conference, as opposed to
standard scheduling order deadlines that
typically correlate to the trial date.
If the parties identify documents that
were or must be obtained from a third-
party, be sure to leave enough time to
obtain copies of the documents if they
were not produced by the party that
identified them. And of course, no matter
what was produced by your opponent,
the best way to cover all the bases may
be to send your own subpoena or release
to the third-party to make sure you truly
have all relevant documentation. This is
another process that takes time and may
not be directly addressed in a standard
scheduling order.
Reaching Agreement on the Scope
of Discovery
During all these discovery activities,
it is imperative to be on the same page
as your client and any interested par-
ties (insurers, for example) regarding
what evidence is needed for a full pre-
mediation evaluation of the case. A clear
understanding on this point is essential
to being prepared for mediation.
There may be certain evidence that
your client or an interested party believes
is important to evaluating the case. You
may or may not agree regarding the
relevance or worth of the evidence, but
it is important that your client and all
interested parties feel comfortable and
prepared heading into mediation. There-
fore, discuss what evidence is needed
for mediation well in advance, so that
you can request and obtain all necessary
evidence prior to mediation and create
the most favorable atmosphere for settle-
ment.
Timing of ExpertWitness
Discovery
Expert witness discovery presents
some unique issues when preparing for
mediation. In certain types of cases,
the parties may want to try mediating
prior to incurring significant expenses
on experts. This strategy may be benefi-
cial in certain cases, but it should be the
exception rather than the norm. Many
cases rely heavily on expert testimony,
so assume that you may need to leave
time prior to mediation (1) to obtain
experts’ opinions and reports; (2) to
take experts’ depositions; and (3) to file,
argue, and (hopefully) obtain a ruling on
any
Daubert
motions that may present
themselves following expert discovery.
This is another important discussion
to have with your client early on in the
litigation.
Timing of Dispositive Motions
In a number of complex cases, the
timing of dispositive motions works
hand-in-hand with the conclusion of
discovery, including expert discovery.
Parties heading to mediation may be
satisfied with having dispositive motions
filed but not yet ruled upon, or they may
decide to hold off on such motions until
after mediation to avoid the significant
costs and fees often associated with such
motions.
However, if liability defenses are
strong and you and your client wish to
pursue full or even partial summary
judgment prior to mediation, briefing an
argument regarding the motion can span
several weeks or even months. It then
becomes extremely important to conduct
all necessary discovery as early as pos-
sible and well in advance of mediation,
to allow sufficient time to move forward
with the dispositive motion.
Putting it toWork
The suggestions outlined above of
course are very general and, if adopted
in your own practice, should be tailored
to a case-specific litigation strategy. In
the end, the overall goal is to put you and
your client in the best possible position
to get a good result at a cost-effective
mediation.
Bakota is a business and commercial litigation
associate in Buckley King’s Cincinnati office. He is
licensed in Ohio and Kentucky and serves as content
co-editor for the Pretrial Practice and Discovery
Committee of the American Bar Association’s
Litigation Section. He received his undergraduate
degree in journalism fromOhio University.
1000 Main St., 6
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