Daniela Tarolli
When a lawsuit is filed, all named parties have the right to conduct discovery. Although the pleadings filed by the parties are intended to let the other parties know what each side intends to prove at trial and what legal case they have to answer, in most cases the parties will require additional information to fully understand each other's legal and factual claims. The discovery process allows for formal investigation by the parties to find out more about the case. Pre-trial access to this information allows the parties to use facts and potential evidence to better define their strategies and avoid delays once the trial begins. In some cases, what's learned during discovery might even help the opposing sides come to a settlement without having to go to trial at all. Discovery can come in a number of different forms, including interrogatories, requests for production, requests for admission, and depositions.
Discovery is governed by the Rules of Civil Procedure for the court in which the case sits. Although the rules may vary from one forum to the next, their similarities far outnumber the differences. Each jurisdiction's rules on discovery share the driving fundamental policy to encourage transparency amongst the parties and prevent an ambush at trial.[1] During discovery, parties are afforded the opportunity to exchange information and catch a glimpse into the other side's perspective. Of course, there are limits to what a party is required to produce during discovery.
Although the Rules are broadly interpreted, their ability to compel the other side to produce evidence is not boundless. The three main exceptions to the disclosure requirements are: (i) the information sought is protected by a privilege; (ii) the information sought is not reasonably calculated to lead to the discovery of admissible evidence; and (iii) the burdens of disclosure outweigh the benefits to the requesting party. The first exception is most commonly triggered by the attorney-client privilege. Meaning, a party can communicate freely with his or her attorney without having to fear that those communications will be subject to disclosure. This also includes any documents and/or communications prepared in anticipation of litigation that only you and your attorney know the contents of. The second limitation is the cardinal rule of discovery. A party is only entitled to disclosure of information that is reasonably calculated to lead to the discovery of admissible evidence. Many people fear that whatever they produce during discovery will be admitted as evidence at trial. This is not necessarily the case; courts follow separate and more narrowly tailored Rules when it comes to admitting evidence during trial. Lastly, the requesting party cannot unduly burden the opposing side with its production requests. For example, if a requesting party can obtain the information sought in a less cumbersome fashion than the party on which the discovery was served, then the requesting party may have to obtain it themselves.
Types of Discovery
Discovery is a multilayered process which often takes months. The first wave traditionally comes in written form. It is intended to allow parties to familiarize themselves with all the facts each side intends to rely on. Clients work closely with their attorneys in the written discovery phase to ensure all required information is provided and that full and adequate responses are given to each request.
Honesty is paramount in every stage of discovery. More important than just looking credible as a witness, lying is not permissible when responding to discovery any more than lying in court is permissible. Most discovery requests are tendered with a notarized affidavit, meaning they are given under oath. The party who signs the affidavit swears that their responses are true and a notary attests to the party's signature.
Since the responses are given under oath, just as with testifying in court, a party can be penalized for lying under oath, or “perjuring†themselves. Penalties can be civil or criminal in nature.
To ensure judicial efficiency and prevent oppressive tactics, the Rules require a party to respond to a request within that jurisdiction's time frame and that parties request no more than a predetermined number of interrogatories and requests for production.
Initial Disclosures:
If initial disclosures are required in the jurisdiction, they are exchanged first. These contain a brief breakdown of what each party believes to be the issues in the case, a list of what witnesses and evidence they intend to rely on, and what may lead opposing parties to discoverable information. Shortly thereafter, parties begin propounding interrogatories, requests for admission, and/or requests for production.
Requests for Admissions:
As the name suggests, Requests for Admissions are simply one party requesting that another party admit or deny certain allegations. Requests for Admissions are particularly useful in their ability to allow a party to concede an issue in a case, thereby narrowing the issues to be tried. For example, Plaintiff files a lawsuit with two breach of contract claims: claim one for failure to deliver a commodity by a particular date, and claim two for failing to deliver the commodity without damage. Plaintiff propounds requests for admission to which the defendant responds, admitting that the delivery of the commodity was two weeks after the date set out by the contract, but denying all other requests. Plaintiff may no longer need to prove this issue at trial as Defendant has conceded that element of a breach of contract.
Aside from narrowing the issues, Requests for Admissions can also be a valuable tool to draw inferences that may later help you in case strategy.
Interrogatories:
Interrogatories are a formal set of written questions submitted by one litigant to another. They are meant to clarify matters of fact and help to determine in advance what evidence exists and what will be presented at any trial in the case. Although similar to Requests for Admissions, Interrogatories are more open-ended. A set of interrogatories may begin with questions for basic information, such as a person's legal name and current address. These are usually followed by more detail-intensive questions regarding the facts of the situation from which the lawsuit arose. For example, in a car accident case, a party may ask the other to “state with specificity how the accident occurred, including what time your trip began on that day, the route you took, and the speed you were traveling.†Interrogatories might also seek the identity of individuals who may have knowledge of the incident in question.
Requests for Production:
Just as interrogatories are designed to get information from the other party, requests for production are designed to get documentation. A Request for Production of Documents is a legal request for documents, electronically stored information, or other tangible items. During the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents it has that pertain to the subject matter of the lawsuit. For example, in a lawsuit alleging harassment in the workplace, a party may obtain copies of e-mail messages sent by employees of the company.
The responding party is required to furnish copies of any documents that are responsive to the request, except for those that are legally privileged. The responding party also can respond by asserting that the documents cannot be produced. For example, the responding party may indicate that documents are unavailable because they have been destroyed, that it would be unduly burdensome to produce the documents, or that the documents are not in possession of the responding party. The requesting party may then elect to file a motion to compel discovery, asking the court to order the other side to produce documents.
As most documents and communications nowadays are stored electronically, the parties can agree in advance on the means and methods in which they will be electronically produced. Using E-discovery allows the parties to more easily search through the documents using various search terms while permitting the parties to check the metadata and other authenticators found in electronically-stored information. Metadata shows the entire history of a document, thereby limiting the potential for one party to mislead another about the origins of the document.
Depositions:
Unlike written discovery, a deposition involves gathering evidence from a living, breathing human being. The deposition has two purposes: To find out what the witness knows and to preserve his or her testimony. A deposition presents a more detailed opportunity for understanding the case and is not solely about getting favorable testimony. If, for example, a witness's version of events would undermine your case, you would want to know that long before trial; the last thing you want is to hear damaging testimony for the first time when the witness takes the stand. Basically, a deposition is an opportunity for all sides to learn where the weak spots are in their respective cases in order to prepare for ways to address them at trial.
Depositions produce sworn testimony of a witness under oath and preserved by a stenographer for later use. All named parties in an action are subject to depositions, but parties may also take depositions of third-party witnesses. Depending on the jurisdiction, a party may be limited to the number of “fact witness†depositions. Deposition testimony may be used for a variety of reasons at trial, including impeachment and motions practice. Additionally, deposition testimony may be used at trial as substantive evidence to support a party's case.
Discovery can be a long and intimidating process for those who have not gone through it, but understanding the intricacies and working closely with an experienced litigation attorney should give you piece of mind.
[1] The intent of discovery is to allow the parties to learn all of the facts before the trial, so that no one is surprised once that witness is on the stand. Contrary to what countless movies and TV shows would have you believe, springing a surprise witness or document at trial is regarded as unfair and generally not permitted. By the time a trial begins, the parties should know all the evidence to be presented, who all of the witnesses will be, and what they'll say.