Discovery – It’s Not Just a Channel

Resource Topic: 
Litigation
Collections
Foreclosure
Covenant/Rule Enforcement
Construction Defect
Complex Litigation
Discrimination
By: Damien Bielli

Although Discovery is a very interesting cable channel, it is also a broad all-encompassing term to describe the fact-finding process in a lawsuit. Lawyers are literally discovering facts, evidence, witnesses, and case theories utilizing a variety of discovery tools.  Without the aid of discovery tools it would be nearly impossible for lawyers to litigate civil cases with any sense of understanding.  The definition of Discovery contains the aggregate of devices, including, among others the deposition, written disclosures, and interrogatories, which the trial lawyer utilizes in advance of trial to prepare for it.  Discovery allows an attorney to probe into the other sides of the case and see the data and material witnesses of that party may have regarding the issues. The purpose of discovery is to prevent litigation from becoming a game by requiring parties and witnesses to shed light before the trial so as to prevent surprise.

Generally there are three components to a civil lawsuit. The first phase begins when the case is initiated by a party. A Summons and Complaint is filed and served on a Defendant and that Defendant files an Answer.  The Court retains jurisdiction over the parties and preliminary filings, appearances, and deadlines are determined. The next phase in a case is Discovery.  The final phase of a civil case is the trial phase.

The discovery tools available to litigants are both broad and restrictive. Depending on the subject matter of the lawsuit and allegations asserted, it can be a costly process which consumes substantial resources. Discovery tools are used to request everything and anything that is relevant to a party’s claims or defenses. A variety of weapons in a litigant’s arsenal enable each party to inquire of the opposition as to the existence and production of documents, witnesses, financials, expert opinions, physical evidence and more. Failure to disclose items requested during discovery may result in sanctions issued by the Court. These Court imposed penalties can vary from an extension of discovery and an Order to produce the requested material to fines to the ultimate penalty of dismissal of the lawsuit. As a result, attorneys will sometimes disclose everything and the kitchen sink leading to an over-production of information which forces the legal team to sort through volumes of irrelevant data costing valuable time and money.

Similarly, and more often than not, discovery is answered as minimally as possible and follow-up requests, motions, and hearings are required to drag discovery from the opposing party. Parties generally shy away from providing too much information. They stand on baseless objections, crafty lawyering, and over-specific interpretation of requests to thwart the discovery process. In turn, this also results in a costly endeavor by legal counsel to pry discovery from their opponents.

Pursuant to the discovery rules of the Court, all parties are required to provide the opposition with Initial Disclosures. These include generally, a list of witnesses, documents in possession of the party which may be used at trial, insurance, if any, and other pertinent information. It is then up to the parties to utilize the various discovery tools under the rules to gather the additional information they feel necessary to prosecute and/or defend claims. As the goal in the process is to avoid surprise, lawyers try to utilize discovery to ascertain everything they can about the case.

A Deposition is one of the most useful tools employed during the litigation of a case to gather information. It is the oral testimony of a witness, usually the opposing party, which is reduced to writing for later use in court or for discovery purposes. Depositions are a vital part of the discovery process in which litigants gather information in preparation for trial.

Interrogatories are written questions crafted by an attorney and sent to the opposition to be answered. While useful, they do not take the place of a deposition and are limited in number.

Demand for Production of Documents is another important tool for litigators. This is a catchall device for requesting documents and tangible evidence to be used in support of the case. Most of the written documents exchanged between the parties come as a result of follow-up demands for production after review of a party’s initial discovery.

Most of the life of a case is spent in the discovery phase of litigation. It takes time and resources to fully flush out the evidence especially when parties are resistant to disclosing things which may damage their position. It is extremely important that you engage a competent litigator who understands the procedural rules in order to maximize efficiency in the discovery process and alleviate any surprise which may be lurking around the corner.  If you would like to discuss this article in greater detail, feel free to call one of our attorneys at 303.432.9999.