What Is Discovery in a Legal Case?

DISCLAIMER: The Following is not legal advice, it is for informational purposes only.   If you have a legal issue, please consult your own attorney.  

Explaining Discovery in a Legal Case

One of the most important components of a lawsuit is what is known as the discovery process. It is the investigation portion of the lawsuit where you and the opposing party  get to ask for information from one another and it is part of all civil cases. The discovery process is engaged to locate admissible evidence in a civil action. At the end of this article, we will share what we are doing to innovate the discovery process through investigations using digital media.

There are several traditional forms of formal discovery and depending on the case, they all can be extremely time-consuming and expensive. Each formal discovery tool is governed by the discovery rules of civil procedure. Examples include a request for production of documents. This discovery tool is fairly straight forward in that it is a request from the opposing party and even non-parties to produce specific documents which may be introduced at as evidence in a court case.  Generally, each party has the ability to object to each specific request and, unfortunately, it has become the exception rather than the rule to just produce documents without a court order.

A request for production of documents also includes electronically stored information, such as emails, text messages and computer files. For this reason, even before litigation commences, it is advisable to develop a discovery plan as to what documents will be at issue in the subject matter of the case.

Another formal discovery tool are known as interrogatories.   Interrogatories are written requests in the form of questions that must be answered by an opposing party or a non-party under oath and penalty of perjury.   Here again, pursuant to the court rules, each side has the ability to object to the opposing parties’ interrogatories. 

Interrogatories as a discovery tool can seek information about fact potential witnesses, request explanations of documents/physical evidence and ask for detailed factual answers to key case issues.

Types of discovery include the taking of a deposition where a lawyer will take an oral examination under oath, and all of the witnesses’ statements are recorded by a court reporter.  In most legal proceedings, depositions can be take of a party or opposing party or an expert witness without a subpoena.   Non-parties will require a subpoena which must be issued by one of the attorneys in the law firm.  Oral examinations are powerful discovery device and strong preparation can yield information that can solve the case.

The key to every single civil action is information. It is finding out what the opposing party does not necessarily want you to discover. Formal discovery is one way to obtain that information. There are other means, such as private investigations, speaking with fact witnesses off the record, researching social media, issuing a notice to witnesses and formally requesting information from a government body under the Freedom of Information Act or Sunshine Laws.

The discovery process has its limits such as information protected by the attorney-client privilege.  This privilege protects communications between lawyers and their clients from discovery by an opposing party.  Another way to prevent the turning over of information is by asserting a work product privilege which is similar to the attorney-client privilege and protects documents and potentially physical evidence which was compiled during or before the litigation.  Both the attorney-client and the work product privileges can be asserted in a response to a request for production of documents, interrogatories or during a deposition.

Unfortunately, formal discovery, because of the way some law firms play the game, is the most expensive part of a lawsuit. Why is it expensive? Because the people and corporations that have the money tend to defend civil cases, not on the merits, but through a war of attrition – a constant raising of frivolous objections and attorney-client and work product privileges.

The rules of the formal discovery process lend themselves to abusive objections and the discovery procedures usually require hearings on these objections unless the opposing party can be convinced to streamline the process.    Over time in a civil case, It becomes unfair because the person who has the most money can outspend, delay, and defeat their opponent not because they did not steal or defraud, but because as some say in criminal cases, you are innocent until proven broke.

So question is, what do you do in this scenario? How does the law evolve such that it becomes fair? How do you level the playing field?  Simply put, lawyers must innovate by utilizing the power of digital media as a means of obtaining information.   This includes obtaining information from witnesses outside of the traditional discovery process but still within the context of litigation and advancing clients claims.

How do we do that? We asked for witnesses to come forward on digital media on a confidential basis.   We produce YouTube Videos.   We have issued written notice to witness press releases. The result, courageous people with information contact the law firm on a confidential basis.     It is a lot less expensive means of discovery and has proven a means to expedite legal proceedings. It supports getting to the truth quicker, faster, more efficiently, and more fairly.

Now, innovation comes with push back.  One must expect that challenging the status quo is not easy.   We believe, however, that, notwithstanding the push back, the law that has developed relative to legal investigations through press releases supports our innovative efforts.  The point is – if nothing changes – nothing changes.    We believe that there is a better way to approach discovery than the current paradigm which only supports lawyers making money at the billable hour and individuals getting bullied by abuses of the legal system.