What is Discovery in Law?
Legal discovery refers to a pre-trial procedure where one party in a legal action (the "requesting" party) seeks information from the other party (the "responding" party). Legal discovery is often described as "a frank and open exchange of information" between the parties. It occurs before a trial or hearing and is designed to gather information to prepare for trial or hearing. Legal discovery can only be initiated by a party who has been given "permission" by a court to proceed with discovery.
Legal discovery does not prohibit parties from voluntarily sharing information with one another. For example, during the initial pleadings stage (discussed below), both parties can voluntarily share with each other copies of the documents that each party claims support their position in the case. Similarly, when they meet and confer (also discussed below), both parties can voluntarily share an informal exchange of information.
So why go through legal discovery? In many cases , it’s essential. Legal discovery can require one party to share with the other copies of documents relevant to the case that the requesting party did not already receive either (1) in a voluntary exchange of information or (2) during the initial pleadings stage. Legal discovery can require that a party answer "interrogatories" (i.e., questions in written form) posed by the requesting party, respond to all parties’ requests for documents and inspect physical evidence in the possession of the responding party. Legal discovery also allows depositions – essentially in-person question-and-answer sessions between the requesting party and the responding party (or any other witness). These sessions can be conducted with all parties present or, in some cases, with just the deposed witness and the requesting party’s attorney.
Legal discovery can be a very complex procedure. The following sections explain the many forms of legal discovery actions.
Phases of the Discovery Process
The legal discovery process generally has a set of stages, which allows both parties to gradually obtain key information. As the case evolves, new information may be requested, which keeps the discovery process ongoing until the trial. Initial Disclosure: This step is only relevant in civil cases, as it does not apply in most else in the area of law. The goal is to provide enough basic information for the judge and jury to understand what the case is about.
Interrogatories: These are written questions that must be answered under oath with the given "sworn testimony" providing direction for discovery and evidence collection. In other words, it is a preferred method of requesting information during discovery because it produces the clearest responses possible.
Depositions: A deposition is a formal, given testimony that is recorded for later use. It is used when an interrogatory cannot get the job done—the most common reason for using a deposition is to collect evidence about a key witness or subject.
Requests for Production: When one party needs access to tangible evidence such as documents or physical objects, they may file a request for production, which asks for this evidence. The other party must be able to produce the evidence in question.
Requests for Admission: While interrogatories often ask for factual information to provide more context and clarification on the case, a request for admission simply asks the other party to admit or deny a certain statement. Long before the discovery process is set to begin in earnest, such admissions are used to establish some basic facts and determine which issues each side will not agree to in order to streamline the entire procedure.
Discovery Timeline in Civil Cases
The typical timeline for discovery in a civil lawsuit varies depending upon the court rules, complexity of the lawsuit, and jurisdictional differences. Generally speaking, the discovery timeline is defined after the defendant files an answer to a civil lawsuit. The parties will then either agree upon when they will turn over pleadings and documents or the court will hold a preliminary conference regarding the discovery process. Oftentimes in New York City, discovery timelines are not formally set up by the court until later in the litigation if the parties are working together to seemingly expedite the process or compress it into a limited window of time.
The New York Court Rules require civil lawsuits to complete discovery within 10 months from the date of issue to be joined and if an extension is needed, it must be obtained by the party in need of an extension.
Depending on the complexity of the case and whether documents processing will be necessary, the discovery timeline will vary. In general, however, written demands for several categories of information are always sent to the opposing parties. The written discovery process includes document demands, interrogatories, and a deposition. If your lawsuit involves a contract, these items may comprise most of the discovery material needed. However, complex litigation may involve historic documents review, expert witnesses and testing. Depending on the number of parties involved, issues under dispute and amount of documents that need to be processed, discovery periods may last 12 months or more.
Deposition deadlines are also defined by court rules. The New York court rule for responding to deposition notices is 15 days; however, the deadline will often be agreed upon by the parties. The only court rule provision not set in the discretion of the parties is that 20 days must be allowed for change of place and answer to witnesses subpoenaed. Likewise, the typical period of a single deposition is one day unless otherwise agreed upon.
In addition to complying with the court rules, parties in lawsuits should abide by the oral refusals made by witnesses. Refusals are the attorney direction to the witness not to answer a question. Refusals also apply where the witness cannot hear or understand the question. Refusals are of the utmost importance because they preserve the issues for appellate review later if needed. If a refusal occurs, parties should inform the opposing counsel in writing with specificity as to which refusals are being objected to and why.
Handling Discovery Deadlines
Because the consequences for failing to comply with discovery deadlines can be severe, as discussed in the last section above, practice management of discovery is an essential aspect of law office management. It is critical that a law office in Michigan set up procedures to deal with compliance to discovery deadlines. These procedures can take many forms. For example, it may simply take the form of a checklist and a couple of reminder e-mails from the office manager or the attorney’s secretary. It may also take the form of a written, automatic e-mail reminder system. Either way, each attorney must get his or her own system and must monitor his or her deadlines for complying with discovery requests.
However, regularly scheduled hearings should be a part of any procedure to manage discovery. Numerous systems have been developed for use in family law cases. For example, in the Third Circuit, in the old Friend of the Court Informal Meeting agreement that was used, because it was negotiated at the very beginning of each case, the parties would have agreed to a hearing date to deal with motions to compel, which would be heard for the circuit judge in that particular county. The other circuit courts in southeast Michigan along with the Macomb County Friend of the Court have all adopted a similar system for all motions. Having at least two pre-scheduled hearings for the exchanges of discovery materials and complying with any requests to compel provides every attorney with incentive to produce the materials and to prevent an embarrassment in front of a judge. Having these hearings can also have the effect of forcing aggressive and stubborn individuals to be more reasonable in their discovery requests; to a certain extent and over time this has become the norm in Macomb County. For example, the Plaintiff could state that she has not provided or received Plaintiff’s tax returns and schedule her motion while agreeing to produce the same things in exchange for the Defendant providing his. This suggestion can be made at the pre-hearing before the initial deadlines expire to produce the documents. These issues have become less frequent in the former Friend of the Court’s system but still occur from time to time. In those cases, the judges still unexpectedly require the parties to produce things and be held in contempt for willful failure to comply.
The parties should carefully review the entire proposed judgment that has been presented beforehand. In some instances, even though with limited review of the final documents before signing, attorneys can scrutinize the agreement so well that they are able to catch problems that were overlooked earlier. Also, in at least one case, Judge Colleen O’Brien required counsel to correct typographical errors on the record even though the attorneys knew that the errors existed despite knowing the final judgment for months. Seeing those issues at the end, before addressing the entered judgment could save money in correcting errors later on.
Another point for managing the deadlines for discovery is to carefully control what arguments and discovery requests will be provided during a particular hearing. Some attorneys present excessive and frivolous requests to compel discovery well beyond the scope of the original request. Other attorneys refuse to provide even minor compliance. While it is understandable that many arguments are made by attorneys to benefit their clients, often repetitively, they do not necessarily add to the arguments of the case and should be limited to avoid making problems for people down the road. For example, in Britton v Britton, 2010 Mich App 251; 2010 Mich App Lexis 1234 (2010), the Court of Appeals affirmed the County Circuit Court for Kent County in an Order for the apparent party to pay as a sanction the attorney fees to the friend of the court. On that case, the FOC had previously filed a motion to compel a party to comply with the discovery and had incurred fees. If records are kept on the times and date of those arguments, there is a significant chance that the Kent County judge would order the noncomplying party to pay the FOC fees back to the court. The Kent County courts are known for having strong sanctions. The past practice in Macomb County has been to observe sanctions, however, some attorneys who take advantage of their clients and cause unnecessary work will not be fully punished even though they incur more fees.
Challenges with the Discovery Process
While the discovery phase of litigation is meant to be straightforward, it often presents a number of complex challenges to litigators. This is because, among other reasons, parties often stubbornly refuse to accept what they’re ultimately entitled to, or make far more demands than necessary. The biggest challenge to the discovery process for many organizations, however, are privacy concerns. When conducting discovery on behalf of commercial clients included as defendants in litigation, for example, some organizations are forced to make substantial compromises to their privacy policies in order to be compliant with discovery requests. Still, there are some potential solutions to these problems.
Non-compliance
The easiest problem to solve is the non-compliance of a party. Common examples include the failure of a party to produce documents relating to their defense, or the refusal of an employee to provide documents or testimony. In weighing the options, it is often recommended that out-of-court tactics be used first, such as sending a "meet and confer" letter to the non-compliant party. An email serves as two-way communication and often is enough to get an otherwise uncooperative party to comply with the request. If these options fail, the next step is usually to file a motion to compel compliance with the discovery order. In very serious instances , failure to comply with a court order can even lead to the sanctions of the court.
Excessive Demands
In some cases, legal discovery can become excessive and burdensome for the other party. It’s no secret that parties to litigation often push harder against parties to the other side. When improperly so, this can constitute discovery abuse. Excessive demands can often be resolved through good two-way communication, but if that fails exchange of a letter may be needed to show the other side the error of their ways (in the case of premature discovery requests), or the imposition and threat of sanctions (in the case of discovery abuse that’s excessive even by litigation standards).
Privacy Concerns
Privacy can be a serious concern in litigation for large organizations, especially when that organization is incorporated in Europe or operating globally. Because of various international data privacy laws, companies can face major penalties for providing sensitive personal information to other parties. This can necessitate the need for mediation for consent of the concerned private individual(s), or involve other complex negotiations that can become costly. When facilitating the transfer of this data, parties will need to be mindful of a number of privacy laws, and should consult their attorney and perhaps a privacy data compliance officer before making any decision involving the release of personal data.
New Tech Impacting the Discovery Process
The e-discovery boom has been fueled by the mantra that technology can reduce costs in the discovery process. And while technology has indeed reshaped the way we practice discovery, it is a bit of a misnomer to say it has reduced costs. Technology has made e-discovery more affordable, but it has not necessarily made it less expensive. Where technology helps with e-discovery is that it often enables the attorneys handling discovery matters to do their work more efficiently, and usually faster. While some have argued that the factors comprising efficiency equate to reducing costs, this is a simplistic view. To the extent that technology saves time—and thus money—is it necessarily a bad thing? The answer is no. In a time when we are constantly asked to do more with less, there is a ton to be said for technology helping us get our work done faster. But it comes with a risk. The risk is that by using technology to do our work faster, we might make the temptation of the "costs saved" just that—a temptation that drives the next wave of technological development, and ultimately (or inadvertently) encourages litigation misconduct.
The difference between efficiency and cost savings is probably most apparent in the realm of document reviews. The days of skimming documents with a naked eye are gone. With regardless of whether the review is done by the attorneys or by contracted third-parties, the use of review software by its nature targets certain documents for review. But this is not a bad thing, it is just the way it is now. And frankly, reviewing the documents with the help of software allows you to get through more documents in an appropriate amount of time so that you can pay for the many more qualified lawyers who are now needed to conduct investigations that wouldn’t have been before.
For instance, as technology continues to make litigation cheaper, many firms have foregone their standard approach to auditing data collections and processing. Instead of paying data experts such as forensic specialists, IT professionals, and contract attorneys to look for certain keywords, they pay lawyers to think about the concepts of the data. This approach requires lawyers to process and think outside the box in ways that used to not exist. A lot of lawyers haven’t quite mastered this art. Simply conducting a review of keywords, even though technology provides for more skilled searching, makes you miss the point of who will actually be using the data later (the judges). Skipping ahead can lead to surprises at trial and deposits. Experiencing these surprises can lead to accusations of non-compliance and even sanctions. There is an art of managing data collection and document reviews that comes with practice. It sounds cliché to say practice makes perfect, but it does.
Technology has not reduced the cost of discovery. It has helped the good lawyers shine brighter. Now there are simply more great lawyers involved in the process. It has also helped augment the role of the paralegal. It has shortened the time to complete work. But it has also created a generation of lawyers who think outside the box. So pat yourselves on the back for creating the lawyers of tomorrow (although we’re not sure if that’s a good thing).
Best Practices for a Seamless Discovery
For a smooth discovery process, it is best for the served party to proactively try to comply with the request and not to immediately object to every request as burdensome and unnecessary. If you feel that the request is burdensome, document what you have already done to comply and what you will be required to do to comply. You likely will need this documentation if a motion to compel is filed to avoid compliance of requests and may reduce the expenses relating to a motion to compel.
Likewise, if you do not have information or documents in your possession, you should note what you will need to get to comply. For example, you may need to contact an IT person at your company about retrieving emails or reviewing a social media account to get information to comply with a request. Document these needs for compliance and your efforts to comply. If you don’t make these efforts in a timely manner, you likely will not be able to later state that your requests to cure any defects in your compliance were burdensome .
If you have contacts with outside counsel or in-house counsel for the other party (or others involved in the claims), update them with information about your compliance and anything else needed to comply.
Try to maintain a list of the dates when you first received written discovery requests and the dates on which the other party received your responses to their written discovery in case there are questions either about the date on which the other party received your responses or the date on which you received the other party’s discovery requests.
Do not be surprised if discovery requests are propounded before or shortly after a lawsuit is served on you. What normally occurs in business litigation is that the other party obtains written responses to discovery requests prior to the filing of the lawsuit before or shortly after the Complaint is served on you. This will allow the other party to propound requests for admission and document requests early in the process to try to narrow the issues prior to the Deposition of witnesses for both parties.