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 everything from a court’s crowded docket, the limited number of available judges, and recent budgetary constraints, to 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.
‘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. 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.
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.
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 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.
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.
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 and tedious. As more and more information is stored electronically, the rules have been updated to address the production of electronic information. While producing documents on CDs or other electronic media 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, 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. Although every effort is made to avoid such disputes, 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.
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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.