The Litigator’s Notebook: How Discovery Helps IJ Build Winning Cases

Dana Berliner
Dana Berliner  ·  April 1, 2022

In this notebook, I explore what is often portrayed as the most boring part of litigation—discovery. Discovery is a period during litigation, lasting around four months to a year, during which we gather information to prove our case. Because we sue to challenge laws and government policies, much of the time we have to get information and documents from the government itself. As part of that process, we ask the other side for documents (“requests for production of documents”), ask written questions (“interrogatories”), ask if the government will agree that certain facts are true (“requests for admissions”), and ask government employees questions under oath (“depositions”).  

Discovery is often time-consuming and tedious for lawyers and clients. There is a lot of bickering with the other side, and there are no newsworthy events. But behind the scenes, discovery is often quite exciting because we put together the facts that will allow us to win our cases. 

Consider civil forfeiture. As in the title of our landmark report Policing for Profit, our main argument in many of our forfeiture cases is that the police have a perverse financial incentive to take property through forfeiture because they get to keep and spend a portion of every dollar they seize. The government responds that there is no incentive and that police department spending is strictly controlled by budgets and other rules. But discovery often proves otherwise. In our Philadelphia forfeiture case, for example, our requests for documents turned up performance reviews that criticized officers who did not bring in enough forfeiture revenue and praised those who did.

Discovery can also provide vivid examples of a policy’s irrationality. In Wisconsin, where we are challenging the ban on selling homemade foods, one of our claims is that the law violates equal protection because it allows some people but not others to sell homemade foods. Under the law, selling homemade foods is legal if done for charity but illegal if done to support one’s family. In discovery, we got emails showing that the health department allowed a nonprofit lobbying group to sell highly perishable cream puffs at the state fair while denying our clients the ability to sell far safer foods. This was a stark demonstration of both unfair treatment and the fact that our clients’ homemade foods really are less dangerous than those the state allows.  

Discovery can also be useful when the government tries to disown its previous threats in the face of litigation. In our occupational speech cases on behalf of tour guides, diet coaches, and engineers, for example, the government almost always argues that it is regulating not speech but rather “professional conduct.” This difference is important because courts are more likely to strike down a law that regulates speech. But when asked under oath what it is precisely that our clients are not allowed to do, the government’s answer, invariably, is speak.    

The discovery phase of a case can be annoying, especially when the government refuses to give us documents or answer questions without a court order. Knowing that we often find a crucial and damning piece of information, however, makes it all worthwhile.

Dana Berliner is IJ’s senior vice president and litigation director.

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