Discovery: The Vital Next Step

{3:40 minutes to read}

Cases can often be won or lost during discovery.

When a dispute arises and a party hires an attorney, they will spend time, together, going over the facts, providing relevant documents, and giving the attorney enough information so that the attorney can provide advice as to the strengths and weaknesses of his client’s case, and the alternatives.

If the dispute ripens into litigation, a thorough investigation will allow the attorney to prepare a complaint or an answer—and, where appropriate, counterclaims or cross-claims. There is often a great deal going on at this time – both in terms of the attorney’s investigation of the facts and, where necessary, his researching of legal issues that may be relevant. However, while the client may take a deep breath after all this action, when the pleadings are finally served, especially at a time when the “wound” giving rise to the dispute is fresh, it is only the beginning. As anyone who has been involved with litigation knows, the real commitment of time and cost follows once discovery begins.

Discovery, also referred to as “disclosure,”  is exactly what it sounds like: It is an opportunity for each side to learn the facts and details of the other party’s case. In state court, the scope of disclosure is “all matter material and necessary in the prosecution or defense of an action.” (CPLR §3101 (a))  In federal court, the scope of disclosure is similar: “…any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…” Fed.R.Civ.P.26(b)(1))

In federal court, the parties are obligated to produce certain documents and information at the outset of the case, without being asked by the other side (Fed.R.Civ.P. 26 (a), after which the parties can make additional demands, whereas in state court, the obligation is on each party to make demands of the other side.

While there are different forms of discovery, the most common in almost all cases of any substance are requests for the production of documents and depositions.

Document requests, which often begin with words, “Any and all,” will cover the waterfront;  the attorney requesting the documents will try and be both specific in his requests, so as to ensure that categories of documents that he anticipates exist will be produced, and sufficiently broad so that he is sure to have requested all documents that fall within the scope of discovery; even documents about which he may be unaware.  An attorney does not want to face a situation where he did not obtain an important, relevant document because he did not ask for it.

Oftentimes, following the making of a demand for documents, the parties will have to address objections that the receiving party may have and issues such as privilege, confidentiality, cost, and whether the requests are too broad.  The parties will also have to address the often overwhelming issue of “e-discovery”;  the production of responsive documents that are maintained electronically, including e-mail.  If the parties cannot resolve any disputes they may have, they will need to seek the court’s intervention.

Parties must be careful when undertaking the often time-consuming task of assembling and producing documents responsive to their adversary’s request. I usually recommend that my client provide me with any document that he thinks might be responsive to a request, so that I can make the call of whether it must be produced. The failure to produce responsive documents can, in some instances, result in a party being precluded from using or relying upon those documents later on a motion or at trial.

Depositions may be the first time that an individual is actually questioned under oath. They can be recorded on video, or at the very least, are transcribed by a court reporter, who is present and will prepare a transcript.  It is essential that a party prepares for deposition with his attorney, thoroughly. That does not mean to prepare scripted answers, but it does mean reviewing all the facts and relevant documents that are known at the time of deposition, anticipating areas of questioning, and making sure that you are prepared to accurately and precisely answer the questions.  As one often learns when they are given the transcript of their deposition to review, words matter.  You will have to live with your answers. Also, while witnesses should not guess or speculate,, or provide answers to questions that they don’t understand or to which they don’t know the answer – “I don’t know” or “I don’t recall” are proper answers, if accurate – having amnesia during a deposition cannot be followed by a convenient epiphany of knowledge in a later affidavit on a motion or, subsequently, at trial.  By being thoroughly prepared for your deposition, you should not be surprised by a question or topic.  And, as a result, you will be more comfortable answering questions in a setting that may be, for many,  unusual and, perhaps, a little nerve-wracking .

Clients should take this seriously and know that their depositions will often become the subject matter upon which the case may ultimately be decided.

By giving the discovery process the attention it deserves, you have a better chance of making it work for your case, not against it.


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