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Discovery: Fact and Expert Opinion Development

Dan M. Durrant, G. Sonny Cave, Natural Resources and Environmental Litigation (1989)

In order to prevail in a modern environmental case, attorneys must combine solid litigation skills with both technical expertise and in-depth substantive knowledge of environmental statutes and natural resource laws. This is especially true during the discovery phase of litigation when each party's claims, theories and evidence must be developed and defined with precision. Stated in military terms, well-conducted discovery provides the ordinance for the case-in-chief, guidance for artillery used in rebuttal and develops protective armor for witnesses. During the discovery phase of environmental litigation, counsel must develop not only a solid understanding of complex substantive laws, but also a finely tuned comprehension of highly technical terminology and scientific principles. The successful environmental litigator will skillfully utilize the discovery process to develop a persuasive case from a labyrinth of elaborate laws and regulations and tremendous volumes of tedious technical detail.

The purpose of this paper is to analyze the role of discovery in the specific context of environmental litigation. This discussion begins with a review of the general historical background and evolution of modern discovery. Next, the discussion turns to the preparation and use of interrogatories, document requests and depositions. This is followed by an analysis of document man