Discovery is a key part of a civil or criminal action because it can force an adverse party to disclose information and evidence that is essential to the preparation of the requesting party’s case. Because discovery is a key part in any trial, there must be rules and regulations monitoring it to avoid abuse by one or both parties. The purpose of Bender’s Forms of Discovery is to showcase all the different avenues and tools used in the discovery process today. Since Bender’s publication in 1975, the world of discovery has drastically changed thanks to the Internet and all the technological advances our country has seen over the past 35+ years. In most cases, the law struggles to keep up with the ever evolving world of technology. As a subset of that issue, our legal system must address how to handle and deal with each new form of evidence through discovery, and keep pace with its constant evolution.
Bender’s Forms of Discovery, authored by Matthew Bender of Matthew Bender & Company, Inc., a subsidiary of LexisNexis, is a 17 volume, loose-leaf series made up of Treatises and Interrogatories. The Index for the Interrogatories is volume 10A which provides an index for volumes 1-10A. The Index for the Treatises is volume 17 which provides an index for volumes 11-17. Each volume contains its own index for that specific volume. Each index is given section numbers based on broad topics depending on the type of discovery. These sections are broken down further into sub-categories, providing its users with even more detailed descriptions. For instance, within Interrogatories, the categories for the different types of discovery range from accountants to computers to products liability to slip-and-falls to zoning, while the categories for the different types of discovery, in the Treatises, range from discovery generally to production and inspection (federal and state rules) to discovery of electronically stored information.
Bender’s Forms of Discovery was last updated in 2013 and can be accessed in one of the following ways: 1) using the Browse Sources feature on Lexis Advance, search or browse by title; 2) using the Charlotte School of Law Library catalog, locate the title and then click on “Ebook” to be directly linked to the Lexis Advance site; and 3) using the call number – KF 8900.A3 – pulled from the catalog, access the print version of Bender’s Forms of Discovery in the stacks at the CSL Library.
The volume indices do a great job of grouping categories into broad topics first and then breaking those down further into chapters, subcategories, sections, and subsections. For example, “Chapter 15: Discovery of Electronically Stored Information” is broken down into such subcategories as Scope, Understanding Electronically Stored Information, Record Retention and Disposition Policy, Litigation Response Plan Formulation Stage, Identification Stage, and Preservation Stage. These subcategories are further broken down into detailed sections and sub-sections. However, the Index of Treatises and the Index of Interrogatories may be slightly confusing to a layperson interested in looking up a specific topic because of how the indices refer to specific topics. The indices refer to topics by chapter numbers and sections rather than volumes, whereas the volumes are not broken down by chapters, but rather by alphabetical categories. So, you first have to find the appropriate volume based on your topic, and then locate the chapter and section referenced in the Index.
To demonstrate how easy and helpful this form book is, let’s conduct a hypothetical search. Suppose I were a corporate attorney and had a client who is being charged with embezzlement. Because electronic data on computers, hard drives, and other storage systems will be sought by opposing counsel, I have a moral and ethical duty to ensure that no evidence is destroyed pending litigation. I can locate my duties as the defense attorney by using Bender’s Forms of Discovery; within Chapter 15 discussing electronically stored information, I learn everything I need to know about these duties as they pertain to this specific form of discovery. To get there, I locate Volume 17 because it contains the Chapter 15 discussion about electronically stored information. Within the table of contents for Chapter 15, I locate the topic “Preservation Stage” and within that, § 15.630 providing a full description and analysis of the attorney’s responsibilities to advise a client of her duty to preserve, with annotations to primary and secondary authorities.
~ Courtney Carter, L’14 ~
Class Advisor – Cory M. Lenz, Esq.