Discovery is the most important part of civil litigation (apart from the trial.) Discovery also tends to be the most expensive part of civil litigation. This is often a long and exhaustive process that entails most of the legwork in litigation. At the end of the day, though, discovery is really only about one thing: getting information from the other side to use at trial.
Discovery: An Overview
When one party sues another, they have to (or at least should) have information that supports their claim. Granted, they do not need to prove their case in the complaint. But going in they should already have enough information to know that their claim has a basis in both law and fact. Once the complaint is filed, they can fine tune the information that they have and supplement it using discovery. Discovery should be thought of less as one amorphous thing and more so as the combined efforts of various discovery devices. More on that later.
One of the reasons discovery can get expensive is because its scope unbelievably wide (although it is getting more narrow of late). Parties can utilize the discovery process to find any piece of information that is reasonably calculated to lead to the discovery of admissible evidence. And just because the information sought is not admissible in and of itself, it is still discoverable on the chance that it might to lead to something that is. Information obtained during discovery will also be public record if it makes its way into the court file, so there is also a potential that a person or corporation may have to put personal or sensitive information out there. There are, of course, ways to shield this from happening, but a party will have to show a judge that the information should be protected before any information will be shielded. The discovery process also does not go on forever. A judge will set out a schedule, during which discovery can be obtained. If information is discovered after the final date, then it cannot be utilized at trial.
As I mentioned above, discovery does not manifest itself in one party asking the other for everything they have that is relevant. Discovery is somewhat formalized, utilizing certain devices to obtain the necessary information. Those devices include: interrogatories, requests for production, requests for admissions, subpoenas, and depositions. You can find examples of all of these on our website.
- Interrogatories – These are questions that one party sends to another. They have to be answered under oath and within a certain time frame. Depending on which state or court system you are litigating in, the number of interrogatories may be limited. Parties usually send interrogatories asking about personal information and the background of a party. Interrogatories may also attempt to find out the names of witnesses.
- Requests for Production – Requests for production allow one party to seek documentation from the other. Typically this results in one party sending a ton of documents to the other party. But RPDs may also ask for access to documents or data, meaning one party is asking to inspect the data of another party. There typically is no limit on these, so parties can end up being buried in documents if they do not craft these carefully. With both RPDs and interrogatories, a party can object to a request if it is too broad or seeks privileged information.
- Requests for Admissions – This discovery device is used to figure out what is actually disputed in a case. Since lawyers tend to act like lawyers, they attempt to dispute everything. Requests for admission ask the other side to specifically admit or deny facts pertaining to the case. These are usually pretty effective because if a party fails to respond to a request, the fact that was being disputed in the question is automatically admitted. Granted, it is not like these requests attempt to resolve every factual dispute; that would basically eliminate the need for a trial. They attempt to settle the minor disputes so the trial can be a bit more focused.
- Subpoena Duces Tecum – This is a request for production of documents to a third party. Document request to a third party ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In most jurisdictions, a pretrial subpoena seeking documents from a third party is not controlled by the discovery deadline. So you can give one to, for example, an expert who is testifying at trial. But local rules control this question.
- Depositions – Depositions are basically a way of taking witnesses’ testimony outside of the courtroom. They usually entail face-to-face questioning of witnesses or parties by the other party’s attorney. Each party is represented at a deposition, meaning objections can be made. But, of course, there is no judge there to make a ruling. So these are noted and dealt with after the fact. Parties generally have to answer whatever questions they are asked at deposition, meaning refusal can often warrant sanctions from a judge later on.
Lawyers often take advantage of the high cost of discovery. A lot of the personal injury litigation that is discussed on this blog involves private plaintiffs taking on big corporations. These big corporations have plenty of money to throw at litigation and lawyers. In many of these cases, the key is to get an MDL class action so all the plaintiffs can bear the discovery costs together.
Litigation is a two-way street, though, and plaintiffs can bury a big corporation that forces them to expend millions of dollars and thousands of man hours just to comply with the request. Given how big the scope of discovery is, this really is not all that hard to accomplish. So although discovery is primarily used as a way to gather information, it can also be used tactically to induce one party into settlement.