Draft Discovery Plan Memorandum

Skill: Draft Discovery Plan Memorandum for Breach of Contract and Fraud Defense

1. Subject-matter triage

• Treat this as a pre-conference litigation planning memo, not a merits brief.
• Start from the pleadings, disclosures, and file materials to identify what must be proved, what must be disproved, and what can be obtained efficiently.
• If the file contains multiple claims, defenses, counterclaims, or custodians, enumerate them before analysis and assign each a separate discovery lane.
• Flag immediately any preservation, collection, privilege, confidentiality, or timing issue that could affect the Rule 26(f) conference.

2. Failure modes the skill is correcting

• Listing generic discovery topics without tying each topic to a claim element, defense element, or damages theory.
• Naming custodians without identifying the systems, repositories, and third-party channels likely to hold responsive data.
• Missing preservation problems, including delayed hold issuance, incomplete implementation, or gaps between the preservation trigger and actual compliance.
• Treating ESI logistics as boilerplate instead of proposing concrete production, search, deduplication, privilege, and format terms.
• Failing to surface proportionality limits, inaccessible sources, or sequencing concerns that should shape the conference position.
• Writing a memo that describes issues but does not convert them into concrete proposals and next steps.

3. Legal frameworks / domain conventions that apply

• Rule 26(f): the parties must confer in good faith and develop a discovery plan addressing preservation, ESI, privilege, protection, and scheduling.
• Rule 26(a)(1): initial disclosures frame the baseline universe of people, documents, damages, and insurance materials.
• Rule 26(b)(1): discovery must be relevant and proportional to the needs of the case.
• Rule 26(b)(2)(B): inaccessible sources may be limited where the burden or expense is undue.
• Rule 37(e): preservation failures involving ESI can create serious sanctions exposure if reasonable steps were not taken.
• Rule 502(d) of the Federal Rules of Evidence: a clawback order can reduce inadvertent-waiver risk.
• Rule 26(c): protective orders should address confidentiality, use restrictions, and challenge procedures.
• If the source materials identify a governing authority, use it; otherwise cite the applicable Federal Rules and standard discovery practice directly.
• Do not state preservation, privilege, or proportionality conclusions without tying them to the governing rule.

4. Analytical scaffolds

• Build a claims-to-evidence map:
  • identify each claim, counterclaim, and affirmative defense;
  • isolate the elements or factual propositions that matter;
  • list the document, testimony, ESI, and third-party evidence needed for each.
• Build a custodian-and-source inventory:
  • separate decision-makers, operational personnel, finance personnel, technical personnel, and outside actors;
  • for each custodian, identify likely repositories such as email, messaging, shared drives, cloud storage, ERP/CRM systems, mobile devices, and paper files;
  • note where collection can be centralized and where it must be targeted.
• Review preservation timing:
  • identify the preservation trigger from the dispute timeline;
  • compare it to hold issuance and implementation dates;
  • note any gaps, missing acknowledgments, deleted data risk, or backup retention issues.
• Assess source accessibility and burden:
  • distinguish active, readily searchable systems from legacy, archived, or other harder-to-access sources;
  • note whether phased discovery, sampling, or search-term testing is appropriate.
• Design ESI protocols:
  • propose production format, metadata fields, native or near-native treatment where needed, Bates handling, deduplication, and family-level grouping;
  • recommend a defensible search methodology with an iterative validation step;
  • include privilege review and clawback mechanics.
• Address confidentiality and case management:
  • propose a protective order structure if sensitive business, personal, or technical information is likely to be exchanged;
  • identify whether a staged schedule, phased discovery, or discovery priorities would make the plan more efficient.
• If a source document provides dates, volumes, categories, or other hard facts, use them to anchor the memo; if not, state the need to confirm them through the conference process rather than inventing them.

5. Vertical / structural / temporal relationships

• Show how alleged breach conduct, fraud allegations, notice, reliance, damages, and mitigation relate to the discovery sequence.
• Separate pre-dispute, dispute-onset, notice, hold, collection, review, and production phases so timing risks are visible.
• Where the dispute spans business units, affiliates, or systems, explain which records sit upstream, which are transactional, and which are custodial.
• Make clear when one category of evidence depends on another, such as damages discovery following liability-focused collections or fraud-related intent evidence depending on communications and drafts.
• If there are multiple custodians or source types, present them in a structured inventory before drawing conclusions.

6. Output structure conventions

• Use an industry-standard memorandum shape with clear headings that cover:
  • claims and defenses mapped to evidence needs;
  • custodians and data sources;
  • preservation and litigation-hold assessment;
  • ESI collection and production proposals;
  • privilege, clawback, and protective-order proposals;
  • proposed discovery sequencing and conference positions.
• Keep the tone practical and conference-ready: identify issues, then state what the party should propose.
• Use an ordinal severity label only if you are also flagging issues for immediate attention; apply it consistently and define it once.
• End with a concise recommended-actions section that assigns each action to a role and ties it to the Rule 26(f) timing or another concrete milestone.
• Match the final document filename exactly to the task instruction: discovery-plan-memorandum.docx.