In California, the trial date in civil lawsuits is supposedly to be within 12 to 24 months of when the lawsuit is filed. (However, recent budget cuts means that it is taking longer to get to trial.) Between the time a lawsuit is filed and the trial date, the vast majority of time and expense in civil litigation is incurred in what is called “discovery,” which is the process of gathering evidence to support a plaintiff’s claim or a defendant’s defense.
As the California Supreme Court explained: The discovery process is designed to “‘make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'” Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 376. “The discovery laws in California are designed to expedite the trial of civil matters by (1) enabling counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enabling counsel to ‘set at rest’ issues that are not genuinely disputed.” Burke v. Superior Court (1969) 71 Cal.2d 276, 280-281. In other words: “[O]ur discovery laws were designed to prevent trial by ambush.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.
The scope of discovery is defined as: “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable California Discovery 101 matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” Code of Civil Procedure §2017.010.
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 written questions that one side can serve on any other party in the lawsuit, which must be responded to within thirty-days. Interrogatories are generally used to obtain background information about the other parties and to have the opposing party disclose the facts, documents and persons (witnesses) that support its major claims or defenses. The responding party can object to improper questions, such as on the grounds of relevancy or attorney-client privilege, and has to answer the non-objectionable interrogatories under penalty of perjury. Failing to serve a written response to any discovery on time waives the responding party’s objection and privilege rights. Interrogatories are often the bane of most parties’ and litigators’ existence. They are freely allowed (subject to certain limitations) and can range from tedious and time consuming to burdensome and extremely expensive in terms of time and attorney’s fees to prepare, respond and enforce.
- Requests for admission (RFAs) are written statements that the responding party has to admit, deny or object. RFAs carry with them penalties for not answering, for answering falsely, or even answering late. Specifically, the recovery of attorney fees. Under California law, attorney’s fees are not recoverable unless provided for by statute, the parties’ agreement or pursuant to the tort of another doctrine*. However, attorney fees may be recoverable if the responding party wrongfully fail to a RFA (Code Civ. Proc., § 2033.420. ) With some exceptions, if a propounding party proves a responding party failed to admit the truth, it may be entitled to reimbursement from the responding party for “reasonable expenses”—including attorney’s fees—“incurred in making that proof.” (Id.) Thus, RFAs can be a very powerful tool.
- (*The tort of another doctrine: “A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” Prentice v. North Amer. Title Guar. Corp., (1963) 59 Cal.2d 620).
Document production and property inspection
- Any party may obtain discovery within the scope of discovery California Discovery 101 discussed above “by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Any party can also obtain documents from third-parties, including those who are out of state, by serving a subpoena.
- The inspection of the opposing party’s documents or property is obtained by serving a formal request for production that “[d]esignates the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.” Like with interrogatories and RFAs, the responding party has to serve a written response within thirty days, also under penalty of perjury, to each category of documents that are requested.
- The response options to each request are: object on one or more grounds, such as: the request is seeking attorney-client communications (privilege); the request is overbroad; the request is vague or otherwise unintelligible; the request is seeking confidential or otherwise privileged information, such as customer lists (trade secrets), financial information, or private /personal information. If a request is not totally objectionable, the responding party must state that it will either: comply with the particular demand for inspection, copying, testing, or sampling; or make a representation that the party lacks the ability to comply with the request because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is California Discovery 101 no longer, in the possession, custody, or control of the responding party.
- Computer files: The scope of discovery includes “electronically stored information.” In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail). That is why it is important to have clear document handling policies that set cut-off dates as to when information is archived or destroyed. Courts are 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 when a party or witness (the deponent) is cross-examined by an attorney. The deponent is sworn in under penalty of perjury as he or she will be when testifying in court. A court reporter transcribes the questions and answers, and after the deposition, the deponent is supposed to review and sign the transcript. Depositions can also be videotaped. Depositions usually take place in a conference room of the attorney taking the deposition. They can last from thirty-minutes to a week or more depending on the complexity of the case.
Depositions are also expensive because of the attorney time to prepare and take and the cost of the transcript. Nonetheless, depositions are a necessary part of the discovery process for a number of reasons. Until deposition time, generally the other side’s attorneys have done all of the talking in the lawsuit. However, when you get to trial, the opposing side has to prove its case through evidence, meaning trial testimony and admissible documents, not through the attorney’s arguments.
Another reason that depositions are generally considered to be mandatory for trial preparation is to lock the opposing party and its witnesses’ testimony. In other words, to lay the foundation for witness impeachment by exposing the witness’ prior inconsistent statements. Impeachment is the act of proving a witness is not credible due to inconsistent statements or other conflicting evidence. By exposing a party’s or witness’ conflicting statements, you reduce your opponent’s credibility. Impeaching credibility weakens the case of the other party.
Things to consider about discovery. Discovery can be lengthy, expensive, intrusive, and frustrating. Whether you want to have your business or personal life opened to scrutiny needs to be deeply considered before starting a lawsuit as a plaintiff or deciding whether to settle it as a defendant. The opposing side will do whatever they can to find everything they can to hurt your case. Although there are limitations on the scope of discovery, asserting certain types of claims can waive those limitations. For instance, by claiming emotional distress damages, a party exposes himself/herself to discovery of their medical and psychological records.
There are limits to discovery and safeguards. For instance, if disclosing a customer list to your opponent will hurt your business, the judge may limit discovery by a “protective order” so that only the other side’s attorney can see the information.
The discovery process requires complete disclosure to your attorney of all good and bad facts, witnesses and documents. If there is a problem or embarrassing document, your attorney needs to know about it. One misstatement or incorrect statement or representation during the discovery process can ruin a case.
If the opposing party fails to respond to discovery or provides incomplete responses, discovery can be ordered by the judge. If you have to go to court to enforce your discovery rights, you may be able to recover the attorney’s fees and costs you incur in doing so.
©2007-2020, Keith Turner