Five years ago, I wrote The Luddite Litigator’s Guide to Databases in E-Discovery to accompany a lecture on the subject at the 2010 Georgetown Advanced E-Discovery Institute. When I went looking for source material for the article, I was struck by how little there was. Databases hold most of what we seek in discovery; yet, no one had written anything practical about discovering structured data. My Luddite Litigator’s Guide was a start, but far from a comprehensive treatment as it lacked the takeaway lawyers crave most: exemplar language and forms.
The curse of legal writing is that we are less prone to create than emulate. We borrow language from forms as though it were enchanted incantations. In fact, there are precious few magic words that must appear in pleadings and discovery requests, a point made often and expertly by Bryan Garner, whose thoughtful work I commend to you as a path to better legal writing.
I loathe the practice of law from forms, but I bow to its power. If we hope to get lawyers to use more efficient and precise prose in their discovery requests, we can’t just harangue them to do it; we’ve “got to put the hay down where the goats can get it.” To that end, here is some language to consider when seeking information about databases and when serving notice of the deposition of corporate designees (e.g., per Rule 30(b)(6) in Federal civil practice): Continue reading