Chapter 6: Discovery Process

The discovery process is a critical phase of civil litigation, allowing parties to obtain information and evidence relevant to their claims and defenses. This chapter explores various discovery tools, including requests for production, subpoenas, interrogatories, requests for admission, and depositions, highlighting their purposes, legal frameworks, strategic uses, and best practices.

6.1 The Scope of Discovery

Scope and Principles:

Relevance: Discovery is broad and allows parties to obtain information relevant to any claim or defense, even if not admissible at trial.

Proportionality: Requests must be proportional to the needs of the case, considering factors like importance, amount in controversy, and resources.

Privilege: Certain information, like attorney-client communications, is protected from discovery.

Challenges and Strategies:

Balancing comprehensive discovery with efficiency.

Addressing objections and disputes over scope and privilege.

6.2 Discovery Planning and Conferences

Discovery Planning:

Discovery Plan: Outlines scope, methods, and schedule for discovery, ensuring a structured approach.

Initial Disclosures: Parties exchange basic information early, identifying witnesses and documents supporting claims or defenses.

Conferences:

Purpose: Facilitate cooperation, clarify issues, and resolve disputes, reducing litigation costs and delays.

Strategies: Collaborate with opposing counsel, tailor the discovery plan to the case, and leverage technology.

6.3 Depositions

Depositions Overview:

Definition: Oral questioning of witnesses under oath, recorded for trial use.

Purpose: Gather detailed information, assess credibility, preserve testimony, and impeach witnesses.

Process:

Notice and Scheduling: Provide notice and coordinate timing and location.

Conduct: Attorneys question witnesses, and court reporters record proceedings.

Use at Trial: Can be used to impeach, preserve testimony, or substitute for live testimony.

Challenges and Strategies:

Manage costs, avoid evasive answers, and leverage technology for video depositions.

6.4 Interrogatories and Requests for Admission

Interrogatories:

Definition: Written questions answered under oath, revealing facts and legal positions.

Purpose: Clarify issues, identify witnesses and evidence, and narrow disputes.

Requests for Admission:

Definition: Requests to admit or deny facts or document authenticity, reducing trial complexity.

Purpose: Establish undisputed facts and simplify proceedings.

Best Practices:

Draft clear and precise requests, align with case strategy, and provide timely responses.

6.5 Requests for Production and Subpoenas

Requests for Production:

Definition: Demands for documents, ESI, or tangible items relevant to the case.

Purpose: Obtain evidence, clarify issues, and assess case strengths and weaknesses.

Subpoenas:

Definition: Court orders requiring third parties to produce evidence or testify.

Types: Subpoena duces tecum (documents) and subpoena ad testificandum (testimony).

Strategies:

Identify key third parties, draft clear requests, and ensure compliance with legal requirements.