by Dennis F. Kerrigan, Jr.
Not too many years ago, if a lawyer needed to gather certain information about a potential
witness, he would hire a private investigator, who would conduct a bit of "alternative discovery."
Today, a lawyer can use his own alternative methods of discovery with a laptop and a phone
jack. He can easily search various computer databases and find out not only where the potential
witness lives, but also the witness's telephone number, the type of car she drives, and how much
she paid for her house.
Alternative methods of discovery are, quite simply, techniques outside the normal procedures for
discovery under state and federal rules by which a party to a dispute can obtain useful and often
admissible information. These alternative techniques range from the simple and obvious-obtaining a police report about a disputed automobile accident-to the
complex and hidden-searching obvious and obscure databases on the Web.
Advantages
A party's use of alternative methods of discovery is generally unfettered by the opposing party.
In other words, the opposing party cannot hinder your pursuit of those alternative methods
because the information is obtained from third-party sources outside the normal discovery
process. Rather than filing requests for production or serving subpoenas duces tecum, a few
keystrokes and clicks of a mouse will often lead you to databases filled with useful information.
Alternative methods of discovery are generally pursued without your adversary's involvement,
and therefore, you will not have to contend with inadequate discovery responses or voluminous
objections.
Alternative methods of discovery are often more cost-effective than traditional discovery
methods. Consider the cost of a party logging on to the Internet for 15 minutes to view the
Securities and Exchange Commission's filings of a corporate defendant, compared to the more
traditional method of drafting requests for production, reviewing the defendant's responses (and
objections), drafting a motion to compel, and then arguing that motion to elicit complete
information.
Try These Methods
Search newspapers and other periodicals for articles concerning the opposing party. These
written accounts may contain helpful admissions and information concerning an opposing party
or third-party witness. Use traditional search methods, such as a trip to the public library or a
newspaper's archives. Or, take the electronic route and gain access to literally hundreds of
periodicals that are available online in a searchable format. Besides legal-related service
providers such as Westlaw and Lexis-Nexis, general consumer online services, as well as many
periodicals themselves, provide searchable databases of publications.
Pursue information about an opposing party from public sources. For example, many states
make available to the public the driving history of licensed drivers. Take note, however, that
many states will not provide a driver's address due to privacy concerns. Those addresses may be
obtained from various "electronic white pages" on the Internet or on a CD-ROM.
Likewise, many government agencies maintain useful information that is generally available to
the public under the Freedom of Information Act (FOIA). Pursuant to FOIA, most governmental
agencies must provide access to a wide range of records on written request.
For example, the Consumer Product Safety Commission maintains a searchable database of
accidents involving a variety of products. A party can search that database for accidents
involving a certain type of product manufactured by a particular entity. Or, a party can request
copies of all safety certifications for a particular product or any regulatory actions taken against a
particular manufacturer.
With today's resources and technology, the extent of permissible alternative discovery methods you can use to gatheradmissible information is limited only by your creativity.
Dennis F. Kerrigan, Jr., is a trial attorney
in Hartford, CT and an editor of The
Young Lawyer.
Ready Resources
"Discovery" theme issue of Litigation, Winter 1997, Vol. 23 No.2, the magazine of the ABA
Litigation Section. To order the magazine, call the ABA Service Center at 1-800-285-2221.
Computer-Assisted Legal Research: A Guide to Successful Online Searching, by Susan Cochard
and Samantha Whitney-Ulane. 1997. Law Practice Management Section. To order, call
1-800-285-2221, or visit [http://www.abanet.org/lpm/catalog] or e-mail abasvcctr@abanet.org.
PC# 511-0388. LPM Section members receive a discounted price.
