Forty minutes, no movement
The associate is on a call with opposing counsel about the scope of document requests in a commercial dispute. The other side has objected to nearly every request as overbroad and unduly burdensome. Her client wants the documents.
For forty minutes, both lawyers repeat their written positions. He says the requests are overbroad. She says they're relevant. He says the burden is excessive. She says the documents are central. Both are taking careful notes.
Everyone on the call knows what's happening. The call is not a negotiation. It's the required prelude to a motion, and each lawyer is building the record they'll describe to the judge.
The call ends with no agreement and two emails that evening, each summarizing the call in a way the other side will dispute.
A negotiation disguised as a formality
Many courts require parties to confer in good faith before bringing discovery disputes to the court. The requirement exists because most discovery disputes can be narrowed or resolved by the lawyers. In practice, meet-and-confer discovery calls frequently become performances.
Three features make them hard to do well.
Both lawyers are writing for a third reader. The judge who may later decide the motion is the invisible audience. That encourages positions that sound good in a brief rather than proposals that could resolve the dispute.
The disputes are usually about specifics, argued in generalities. "Overbroad" and "relevant" are categories. The actual disagreement is almost always about particular custodians, date ranges, search terms or document types.
And associates often lack authority. The lawyers on the call may not be authorized to compromise, so the call becomes a recitation rather than an exchange.
Know what you actually need
Before the call, sort the requests into three groups. The documents the case genuinely depends on. The documents that would be useful but aren't essential. And the requests that were drafted broadly as a starting position.
Most discovery disputes are fought across all three groups at once, with equal intensity — which is why they don't move. A lawyer who knows which three categories she would accept if she could only have three can trade the rest for them. A lawyer who treats every request as essential has nothing to offer and nothing to prioritize.
Search terms are a negotiation too. In electronic discovery, disputes about burden are often really disputes about search terms and custodians. Asking for — or offering — hit counts on proposed terms converts an argument about burden into a conversation about numbers, and numbers can be adjusted. Proposing to test terms against a sample before committing to a full review is often the fastest route to agreement.
Make it a real negotiation
Get authority before the call. Know what your client will accept — which custodians, what date range, which categories can be narrowed. A lawyer without room to move can only repeat positions.
Move from categories to specifics immediately. "When you say overbroad, which part is the problem — the date range, the custodians, or the subject matter?" A specific objection can be addressed. A general one can only be argued.
Ask about burden concretely. "What would it take to search those three custodians for that period? How many documents are we talking about?" Burden objections often shrink when quantified — or become legitimate and addressable.
Make proposals, not demands. "Would you agree to produce from these four custodians for 2021 to 2023 using these terms, with the rest reserved for later?" Proposals create movement. Restated demands don't.
Consider phasing. Many discovery disputes can be resolved by agreeing to start with a narrower set and revisiting after review. It's the single most useful structural tool in these negotiations.
Separate what's agreed from what's disputed. Even a partial agreement narrows the issues the court has to decide — which courts notice and appreciate.
Document fairly
Summarize the call accurately and promptly. A short email: what was agreed, what remains disputed, and any open proposals with deadlines.
Resist the temptation to characterize. An email written to make opposing counsel look unreasonable usually produces a responsive email written to do the same. Courts read both.
Invite correction. "Please let me know if I've misstated anything." It improves accuracy and makes the summary more credible if a motion follows.
Four ways it goes wrong
The performer, who treats the call as record-building and never makes a real proposal.
The categorical arguer, who stays at the level of "relevant" and "overbroad" and never gets to specifics.
The authority-less negotiator, who can't agree to anything and so can only restate the written position.
The characterizer, whose follow-up email is written for the judge, not as an accurate summary.
Why this isn't trained
Discovery skills are taught as rules. Associates learn the scope of discovery and the standards for objections. Negotiating specific compromises is learned informally.
The adversarial frame dominates. Associates are taught to protect the client's position; fewer are taught that narrowing a dispute protects the client too — by reducing cost and focusing the court on what matters.
Senior lawyers set the tone. Junior associates often inherit a combative approach from correspondence written before they joined the matter.
And practice negotiations rarely use discovery. Negotiation courses tend to focus on deals and settlements. The routine, high-frequency negotiation of litigation — discovery — gets little attention.
What discovery negotiation simulation can rehearse
A ten-minute simulation can put the associate opposite opposing counsel who begins in categorical, positional mode and responds to specificity, quantified burden and concrete proposals — so the associate practices converting a performance into a negotiation. The AI agent in Foretell AI plays opposing counsel consistently; the matter, requests, client authority and local rules stay with the firm.
Four versions to build:
- The categorical objector, who repeats “overbroad” until asked specifically.
- The burden claimant, whose burden argument dissolves or sharpens when quantified.
- The phasing-receptive counsel, who will agree to a narrower first stage if it’s proposed.
- The record builder, who is openly performing for a motion — testing whether the associate stays constructive.
Design caution. Meet-and-confer requirements, the standards for discovery scope and proportionality, and local practice vary by jurisdiction, court and judge. Modules should use the firm's own matter and local rules; nothing here is legal advice.
Designing the module
Ten minutes, scored against a litigation negotiation rubric.
Pass one — specificity. Did the associate move the discussion from categories to specifics — custodians, dates, terms, volumes?
Pass two — proposals. Did she make concrete proposals, including phasing or partial agreements?
Pass three — record. Was the follow-up summary accurate, neutral and open to correction?
Rubric on observable behavior: Were objections broken down into specifics? Was burden quantified? Number of concrete proposals made. Was phasing proposed? Were agreed and disputed items separated? Was the summary accurate and free of characterization?
Number of concrete proposals is the measure. It's countable, it predicts whether the dispute narrows, and it's often zero on calls that were never meant to resolve anything.
For litigation firms and legal departments
Discovery is where litigation costs accumulate. Disputes resolved between counsel save motion practice, time and client money.
Courts expect genuine conferral. Parties who can show real proposals and partial agreements tend to fare better when disputes do reach the judge.
It builds associate judgment. Learning what the client actually needs — rather than what the requests demand — is foundational to effective litigation.
And legal departments notice. In-house counsel watching discovery budgets value outside counsel who narrow disputes rather than escalate them.
Frequently asked questions
What is a meet-and-confer in discovery? A conference between opposing counsel — often required by court rules — to try to resolve or narrow discovery disputes before seeking the court's intervention.
How do you have a productive meet-and-confer? Get authority beforehand, move from general objections to specifics, quantify burden, make concrete proposals (including phasing), and document agreements and remaining disputes accurately.
What should you do when opposing counsel says requests are overbroad? Ask which part is the problem — date range, custodians, subject matter — and propose specific narrowing where the client can accept it.
How should you summarize a meet-and-confer? Promptly and accurately: what was agreed, what remains disputed and any open proposals — without characterizing the other side, and inviting correction.
The short version
Forty minutes, two lawyers, both writing for a judge who wasn't on the call.
Get authority before you dial. Ask exactly what's overbroad. Quantify the burden. Make proposals — including a narrower first phase. Separate what's agreed from what isn't. Then write a summary the other side can't fairly dispute.
A meet-and-confer that narrows the dispute is better for the client and a better record for the judge. Performing for the motion is neither.
Foretell AI lets litigation firms build negotiation simulations — including discovery meet-and-confers, positional opposing counsel and proposal-based practice like the one above — with configurable AI counsel, recordings and rubric-based evaluation. If your discovery disputes reach the court because nobody made a proposal, we're happy to walk through how other firms have structured it.