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Discovery
Often you will hear those involved in litigation speak of discovery. Discovery is a litigation phase that generally begins after suit is filed. It means that each party is allowed to discovery what evidence the opposing party and even third-parties may have that is relevant to the claims in the lawsuit. Since the information sought need not be ultimately admissible in court, parties are generally allowed broad latitude in seeking information that only indirectly bears on the claims. Thus, discovery can be quite uncomfortable in that many sensitive and personal matters often must be disclosed. However, with sensitive, confidential or business proprietary information, through something called a protective order, the parties can prevent the opposition from disclosing the information to others and limit its use to the litigation. Reviewing documents and retrieving and reviewing electronic files and records can be time-consuming and so quite expensive. You will often need to decide with your lawyer how much time, effort, and money you want to spend on pursuing sources of evidence.
Obligation to Preserve Evidence, Even Before Litigation.
Please note that when litigation is initiated and even before it begins when you have reason to believe that litigation will ensue, you have an obligation to preserve evidence relevant to the litigation. This obligation most often concerns electronic evidence. If you destroy or fail to preserve evidence relevant to a future claim, a court may sanction your behavior. Such a sanction may include deeming as proved what the opposition claims the destroyed evidence would show.
Four Main Means of Discovery:
Interrogatories
Interrogatories are written questions submitted to a party. You usually have thirty days to answer the questions. You must do so in writing and under oath, that is, sign the answers before a notary public. You must diligently investigate the facts asked about—in other words, you cannot simply state “I do not know” if you are able to find out. You can only ask a limited number of interrogatory questions. Your sworn-to answers can be admitted into evidence at the trial. Typically your lawyer will spend much time composing the questions and helping you compose answers to the opposition’s questions.
Request for Production
A Request for Production asks another person or entity to produce for inspection documents, electronic records, tangible objects, etc. Again you usually have thirty days to provide the requested materials. You have an obligation to make a good faith search for any materials requested. Also, you are often deemed to be in control of materials in the hands of third-parties and that you have access to, such as credit card statements and bank statements in the hands of your bank or accounting firm. You need to think about what materials other parties may possess that may contain information relevant to the litigation and describe these to your lawyer.
Subpoena
A Subpoena is an order issued under the authority to the court to a person or entity who is not a party to the litigation. A subpoena may order a party to appear at the trial and testify, to produce documents or other materials that could be requested under a Request for Production, to appear at a lawyer’s office to answer questions under oath (called a deposition and described below). A court has authority to command someone through a subpoena only in the court’s geographic jurisdiction. To obtain evidence from third-parties beyond the authority of the court, your lawyer may have to use a legal procedure requesting a court with jurisdiction over a distant third-party to issue the subpoena.
Deposition
A Notice of Deposition requires someone to appear as a witness at a designated office to answer questions under oath about the subject matter of the litigation. Usually a court reporter is present who makes a written record of every word spoken during the deposition. Depositions are expensive, the court reporter’s fees for an afternoon deposition typically amount to several hundred dollars, but the greatest cost is the lawyers’ time in preparing for a deposition—such preparation being time-consuming both for the lawyer taking the deposition and the lawyer defending the deposition. Depositions may also be taken by video in lieu of a written transcript prepared by a court report (or they may be taken by both means), but a video deposition is less-often used since it is so much more expensive than a deposition with a court reporter alone. At a deposition, the lawyer who noticed the deposition will ask questions of the witness (called the deponent) usually in a conference room at the lawyer’s office. Only one lawyer may question the witness. The witness will have in attendance his or her lawyer to defend the deposition. Depositions are open in that anyone who wants to attend may attend, other than the press. Often key witnesses and interested persons from all parties will attend. Often many of the questions concern documents that are shown to the witness and marked as exhibits to the deposition.
If your lawyer is taking the deposition, he or she will spend much time studying the facts and evidence and will probably interview you at length to obtain a good understanding of the case. Since besides obtaining evidence, another goal of a deposition is to obtain admissions from the opposition, he will ask both open-ended as well as pointed, discrete questions at the deposition. The party taking the deposition can enter the deposition transcript into evidence and at times the party defending the deposition can do so as well so that the answers obtained in a deposition are quite important and often indicate the settlement position of the parties will take.
If your lawyer is defending the deposition, that is, you or someone associated with your company is being deposed, you will spend much time with him preparing. The object of the preparation is to ready yourself to communicate the truth in the best manner possible. Much of the preparation will consist of making sure that you are familiar with and understand all of the facts so that you can testify confidently. The greater part of preparation will consist of your lawyer pretending he is the opposition lawyer asking you questions. During the deposition, you are free to take breaks when questions are not pending and to confer with your lawyer. Your lawyer will object to inappropriate questions.
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