Having worked as a litigator for over twenty years, I have noticed that most clients are unprepared when they become involved in litigation. This is true regardless of whether the client is the plaintiff (who can choose whether the dispute is one worth litigating over), or the defendant (who may have been pulled into litigation it never anticipated and certainly doesn’t want). And it is true regardless of whether the client is an individual or a company, and regardless of whether the client has been involved in litigation previously or whether this is its first litigation experience. Although every legal dispute is different, this multi-part article will address some of the common elements of all civil litigation. This Part II will address the discovery phase of litigation.
Once the defendant has filed a timely answer or other defensive pleading, the case will proceed to the discovery phase. Discovery, or evidence-gathering, is typically the longest and most expensive phase in any lawsuit. During this phase, the parties will be allowed to use a variety of methods to learn information from each other and from non-parties. Parties can use some, all or none of the discovery methods discussed in this article, in any order they choose.
Types of Discovery Available to Parties
Parties may send one another written questions (interrogatories), written requests for documents, written requests for entry upon land, and written requests that the other party admit certain facts. The parties may also request documents from non-parties such as accountants, banks, physicians, former employers, or any other persons or entities that may have relevant information about the issues in the lawsuit.
Courts generally require that parties and non-parties respond in writing to written discovery requests within thirty days of receiving the requests. Written interrogatory responses must also be verified by a party under oath – with the party swearing that the responses are truthful and risking a penalty if the responses are later shown to be false.
Courts also generally require production of any records that are responsive to a request for production of documents, regardless of whether the records are stored in hard copy (paper) form or on a computer, flash drive, CD, cell phone or other device, and regardless of the number of documents that are responsive to the request. Generally, but not always, records should be produced in the form in which they are stored – i.e. electronic records typically are produced electronically rather than in paper form.
In addition to exchanging written discovery requests, the parties may take depositions of one another or of non-parties. A deposition is a meeting at which the attorneys ask a witness questions and a court reporter, or stenographer, makes a written record of the questions and answers for later use in court. The witness must first swear to tell the truth before beginning to answer the questions. A deposition is an opportunity for a party to not only find out what a witness knows, but also to evaluate the witness’ credibility and general manner of answering questions. This evaluation is very important when the attorney prepares to ask the witness questions at trial.
Standard for Discovery is “Reasonably Calculated to Lead to the Discovery of Admissible Evidence”
In most courts, the standard for discovery is that the information sought must be “reasonably calculated to lead to the discovery of admissible evidence.” This means that the requested information need not itself be admissible, or useable, in court – so long as the information is expected to lead to the discovery of information that can be used in court. Because this standard is so broad, it is possible for a party to ask – and for a court to require answers to – questions that may seem highly intrusive. While there may be instances in which a court will require that the answers to the questions be kept confidential, it is rare for courts to prohibit legitimate efforts to gather intrusive information so long as the requested information pertains in some respect to the issues in the lawsuit.
Depending on the legal issues in the case, it may sometimes feel as though every private piece of information about either party has been requested in discovery. While this may be true, the information must be provided so long as it is reasonably calculated to lead to the discovery of admissible evidence. Clients that don’t wish to have every aspect of their lives and/or their business scrutinized under a microscope sometimes have little choice other than to settle the litigation when confronted with intrusive questions. This can be exploited by the other party to force a more favorable settlement. A way to minimize the potential for embarrassment – and to limit who has access to the requested information – is to ask the court to enter a confidentiality order protecting the requested information from disclosure to persons or entities that are not associated with the litigation. This means that the requested information must still be provided, but the court will limit who has access to the information.
The cost of discovery can be high. The parties will incur attorney’s fees associated with the preparation of discovery requests, the preparation of responses to the other party’s discovery requests, and the review of the other party’s responses to discovery requests. The parties will also incur attorney’s fees associated with preparation for, and attendance at, depositions. Because even a very brief deposition can require substantial preparation time, this cost can be significant. Each deposition will also require the presence of a court reporter to “take down”, or stenographically record, everything that is said by counsel and the witness during the deposition. The party taking the deposition will have to bear the cost of the court reporter. Since the party will be paying for not only the court reporter’s time but also the per page cost of the deposition transcript, this too can be a substantial sum.
Although the number of discovery requests to be sent and depositions to be taken may vary depending on the complexity of the case, even cases involving small sums of money can require time-consuming and expensive discovery. For example, the number of essential depositions does not always correlate to the value of the case. The case may be worth $1 million but only have two crucial witnesses. Or the case may be worth $20,000.00 and involve ten crucial witnesses. While counsel and the parties may engage in a cost-benefit analysis to determine which types of discovery are essential, sometimes the cost of developing the facts to support a case can approach or even exceed the value of the case. In that situation, the parties will have to decide whether to continue with the litigation. The ultimate goals of each party will determine whether there are reasons other than economics that justify continuing with the litigation where the cost of discovery is high.
Part III of this article will address motions practice, trial and appeal.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific legal dispute. Please contact The Myer Law Firm if you are in need of litigation counsel.