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Understanding Discovery

Understanding Discovery

In our legal system, we have determined that it works to everyone's advantage if there are as few surprises as possible in the course of a lawsuit. Since the late 1940s, the federal court system has required disclosure of all relevant facts and documents to the other side prior to trial, and virtually every state has followed its lead. That disclosure is accomplished by discovery. Discovery takes three basic forms: written discovery, document production and depositions.

  • Written discovery is typically done by interrogatories or written requests for admissions.

    • Interrogatories are usually questions requiring your version of facts and of your claims. They can range from broad ("What movies have you seen?") to minute ("Is it your position that Defendant used the word "crook" in speaking with you on June 14, 1998?"), as can the "Instructions" which usually accompany them. Often, they are not fair questions, and your attorney will help you decide what you should object to.

    • Requests for admission are not often used, but can be a very powerful tool. They ask a party to admit or deny certain facts, and they carry with them penalties for not answering, for answering falsely, or even answering late.

  • Document production is pretty much self-explanatory. Any party has a right to see most documents that even arguably relate to a case. Particularly in business litigation, the documents involved can be voluminous. In a case where lost profits are at issue, for example, virtually every bit of financial data of the business claiming lost profits is relevant.

    • Does that mean you have to move your business to your lawyer's office for the duration of the litigation? Not really. Most lawyers will be willing to look at documents with you where you work, and take copies of what they need.

    • What about computer files? Increasingly, courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail), although that practice has not yet become general. However, in these cases it is especially important to have clear document handling policies that set cut-off dates as to when information is archived or destroyed. Courts are increasingly skeptical of companies unwilling or supposedly unable to produce digital documents as back-ups have become a standard practice in the business world.

  • Depositions are sworn statements, where a person will answer questions from an attorney, and a court reporter will make a transcript. They can range in length from a half-hour to over a week or more. Although all attorneys have their own strategies for depositions, there are basically three reasons to do them: to lock people into their stories, to see what the other side has, and to do a "practice trial," that is, to see how a witness will appear before a judge or jury.

    • Your attorney will tell you what he or she wants from you if you are deposed, but here are two general things to remember.

      • First, never guess. You are in a deposition to give facts, not to try to figure out what might have happened. Even if it makes you feel stupid to say it, sometimes "I don't know" is the right answer.

      • Second, it is human nature to want to explain things so that your listener understands. Resist the impulse. It is your opponent's job to get the answers. It is your job to answer only the question asked, and not help.

    • In light of all this, there are several things to remember about discovery.

      • First, it is very likely that anything and everything will come out.

      • Second, and following directly from the first, it is imperative that you be honest with your attorney about the facts and documents that may come out. He or she can't do her job if you don't disclose everything.

      • Third, discovery can be lengthy, expensive, intrusive, and frustrating. Whether you want to have your life opened to that kind of scrutiny should play a role in your business decision whether or not to start a lawsuit.

      • Fourth, be honest. Nothing will make you lose a case quicker than lying in discovery and getting caught, and it is likely you'll get caught.

    • Finally, can you do anything if you are afraid that discovery will reveal things, like customer lists or trade secrets, which will hurt your business competitively? Yes, most states and the federal system allow for what is called a "protective order," which limits who (including other parties) has access to your proprietary information.

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