Anyone who has been involved in litigation knows that the time between the filing of a complaint and the conclusion of the case is often far longer than seems necessary to the non-lawyer. Many, if not most, lawsuits filed in California, whether they conclude with a settlement or a trial, can take years to reach a final resolution. The slow turning of the wheels of justice is a source of understandable frustration for clients, especially for those with cases that appear relatively simple and straightforward.

There are many reasons why the process of litigating a dispute takes so long. Those reasons include a court’s crowded docket (which at one time was getting better, but progress was derailed by COVID-19 and is now worse than ever), the limited number of available judges, budgetary constraints, pre-trial challenges regarding the sufficiency of the complaint or the validity of the cause of action, legal maneuvering with things such as summary judgment motions, and scheduling problems among the parties and attorneys which can significantly delay the trial date. But perhaps the primary reason the pre-trial phase of litigation takes so long can be described by one word: discovery.

The Lengthy Discovery Process

‘Discovery’ is the term used to describe the process of requesting and exchanging information between the parties that is never shown during one-hour legal TV shows. Discovery can be incredibly tedious, boring, and time-consuming, often involving slogging through thousands of documents and emails, and taking the depositions of witnesses and parties who may or may not have anything of value to say. It can also be enormously expensive. But the discovery process is designed to make certain that all relevant facts regarding the case are disclosed, that neither party is hiding critical information, and that there are no surprises at trial. While it may often lack the drama of a trial, the discovery phase of litigation is critically important and often determines whether a case is won or lost. At the very least, it provides complete information to every party in the case so that they can accurately evaluate settlement positions and revise those positions based on facts elicited during discovery.

Discovery Laws

Federal courts and California state courts have separate but extensive rules that govern the discovery process. Discovery in federal courts is governed by the Federal Rules of Civil Procedure. In state court cases, the Civil Discovery Act, found at Title 4 of the California Code of Civil Procedure, lays out in great detail when information is to be exchanged, the procedure for that exchange, the kinds of information that can be requested and obtained, and how disputes involving discovery are resolved. The Legislature in California is constantly tweaking the rules in an effort to streamline the process but has been only marginally successful.

To describe discovery as a “fishing expedition” may not be far from the truth. Discovery can be complex, and the rules regarding discovery complicated, but there are generally three basic tools used to gather crucial evidence and information:

Interrogatories

Interrogatories are written questions that are posed to the opposing side and cover any subject that may lead to the discovery of relevant information. The answers to these questions must be delivered within a set period of time (usually 30 days), and the responses must be verified under oath. In addition to providing information regarding the other party’s factual and legal basis for their claims or defenses, answers to interrogatories can be used later in the case to support motions or to impeach a party whose answers on the witness stand contradict those they gave in their interrogatory responses.

Depositions

Other than the actual trial, depositions are perhaps the most stressful and unpleasant part of the litigation for a client, particularly if it is the client whose deposition is being taken. Depositions are like interviews conducted under oath and in the presence of a court reporter, attorneys for all parties, and sometimes even the other parties themselves. In addition to being recorded stenographically, sometimes depositions are videotaped. The attorney taking the deposition has the opportunity to ask the person being deposed (which is usually the opposing party or a third-party witness) a series of questions designed to discover relevant information. A deposition can take anywhere from an hour or two to several days in a complex case.
Generally, there are three reasons for taking a deposition: (1) to discover information critical to the case; (2) to lock in testimony, allowing that testimony to be used to impeach the party or witness if they later attempt to change their answers; or (3) to preserve testimony from a witness who may not be available at trial, either because they are coming from a long distance to testify, or they are ill or elderly and may not be capable of providing testimony at a trial many months (or years) later.

Deposition questioning is usually much different from witness examinations at trial. At a deposition, the only objections that are allowed are those directed to the form of the question or if a question seeks privileged information, and there is no judge to rule on the objection. The person being questioned must answer the question even in the face of an objection, unless the objection is that an answer would divulge privileged information. The attorney taking the deposition may seek to discover any information that could lead to the discovery of relevant evidence. To the contrary, at trial, only directly relevant evidence is admissible, and a judge will immediately rule on objections.

Taking depositions has changed dramatically over the last few years. COVID-19 rapidly accelerated the use of virtual technology in the practice of law, and nowhere is this more evident than in the deposition arena. Now, instead of travelling to distant locations to take depositions, they can be taken from the comfort of the attorney’s office, with all parties, attorneys, and the court reporter appearing remotely. While this saves travel time and expense, it also changes the way depositions are taken, and complicates the process of the use of documents and exhibits. In addition, the ability to take depositions without travel and without all parties having to be in the same location may make it easier to schedule depositions and may motivate the taking of depositions that might have been foregone if virtual technology was not available. Expect deposition practice to continue to evolve, with all the pros and cons that may go with that evolution.

Requests for Production

A Request for Production is used to obtain documents and electronically stored information (as well as tangible property on occasion) from the other party. This often involves the photocopying and exchange of boxes and boxes of documents, all of which need to be reviewed by the producing party’s attorney before delivery to ensure that no privileged or unrequested documents are produced. Then these documents need to be reviewed by the requesting attorney. When tens of thousands or hundreds of thousands of documents are produced, and when only a small fraction of those actually contain useful information, this process can be time-consuming, tedious, and incredibly expensive. As more and more information is stored electronically, the rules have been updated to address the production of electronic information. While producing documents on flash drives or other electronic media, or by way of file-sharing applications, has no doubt saved millions of trees and thousands of square feet of office space, it still can be a lengthy and expensive process to properly review all of this information.

There are other procedures often used in the discovery process, including Requests for Admission (in which one party attempts to get the other party to admit the truth of certain facts), subpoenas to non-party witnesses for the production of documents or for depositions and, in some cases, mental or physical examinations of a party. Occasionally (and probably more often than necessary), the complex discovery process results in lengthy battles over whether a discovery request is appropriate, whether a party has produced all of the requested information, or whether the answers provided are evasive in an effort to prevent legitimate discovery. It is always my desire to avoid such disputes because they are expensive, time-consuming, disliked by judges, and rarely in the best interests of my clients. Yet they do arise, and sometimes the only recourse is to submit the matter to the court for a determination as to how the dispute should be resolved.

All of this takes substantially quantities of time and is rarely the subject of scintillating screenplays. Nevertheless, even though it can be extremely time-consuming and expensive, discovery is perhaps the most important period in a lawsuit’s lifespan. While the passing of time during which it seems not much is happening can be frustrating when there is so much on the line, the discovery process is as much a part of a lawsuit as the trial.

Cohen Law Firm: We’ll Make Litigation Efficient Even If Time-Consuming

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This article has been prepared by Cohen Law Firm for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.