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Things to know about the Discovery stage
- Overview of the Discovery stage
- Definition, purpose, approaches
- The big picture
- Discovery instruments
- Counting days
- Discovery filings
- Appeals at the Discovery stage
Conducting discovery
- Preliminary considerations
- Drafting the Request for Interrogatories
- Drafting the Request for Production
- Drafting the Request for Admissions
- Parts of a discovery request
- Differences between written discovery requests
- Depositions vs. written discovery
- Taking depositions
- Actions during depositions
- The subpoena
Responding to and reviewing discovery
- Ways to respond to discovery
- Privilege
- Grounds for objections
- Responding to written discovery
- Reviewing discovery answers
- The motion to compel
Transcript
Hi. I\’m Matt, and this is introduction to civil procedure lesson four, civil procedure at the discovery stage.
In this lesson, we\’ll cover things to know about the discovery stage, conducting discovery, and responding to and reviewing discovery.
The discovery stage usually starts when the initial pleading stage ends. Any party can begin discovery. Procedural challenges include determining which discovery documents to file, properly objecting to discovery requests, avoiding an adverse judgment for failure to respond to a request for admissions, and providing the bare minimum in discovery.
The parties gather evidence through discovery. One main purpose of this is to determine the merits of complaints, affirmative defenses, and counterclaims.
Another is to prepare for and narrow issues for trial. The parties approach discovery through written requests for information and witness interviews.
Discovery is often the longest part of litigation. One party sends a discovery request or subpoena, and the responding party answers, objects to discovery, and or sends discovery of their own. Then there\’s a back and forth with the parties responding to or not responding adequately to the other\’s discovery. A judge might get involved when written objections prompt a motion to compel. When discovery grinds to a halt, it\’s time for trial.
Discovery is gathered using four main instruments, interrogatories, request for production, request for admissions, and depositions.
Interrogatories are written questions from one party to the other. A request for production is a listing of documents one side wants the other to provide.
Admissions are statements asking an opponent to admit or deny certain facts, and depositions are recorded interviews of witnesses under oath and before trial.
Typically, there is no set time limit for the conclusion of discovery, but there are limits on the amount of time a party has to respond to discovery requests. Meet those time limits and be sure you understand how the court counts time. Thirty days does not always mean thirty actual days. Some courts may count holidays and weekends, while others may not.
Motions during discovery include the motion to compel, motion for summary judgment, and motion for protective order. There are also notices that must be sent in conjunction with discovery, including a notice of taking depositions, notice of service of subpoena, and notice of filing transcripts.
Discovery can be a combative process where failure to respond adequately can be addressed with a motion to compel. A party may even file a motion for protective order. A judge\’s decision in such matters can result in an interlocutory appeal, which is an appeal of an order that doesn\’t end the case. Multiple interlocutory appeals can be filed during discovery.
To prepare for discovery, refer to local rules of the court where your case has been filed and the rules of civil procedure. Determine appeal requirements, including items you need to file with the court, the number of requests that can be made, time limitations, and attachments that must be included with the request or notice. You should also determine the discovery instruments to use and review samples of the approach you want to take.
When drafting interrogatories, determine the question to ask, then draft the request.
Identify yourself in the first paragraph and tailor definitions to the interrogatories you\’re asking.
Most jurisdictions limit the number of interrogatories, so choose strategically. Stay within that number limit. Number the interrogatories consecutively and keep them simple. No compound questions. Separate out each interrogatory.
Finally, don\’t combine interrogatories with a request for admissions. They differ and require different types of responses.
With the request for production, determine the documents you need, for what purpose, and who might have those documents.
A plaintiff might ask, what documents do I need to prove a claim or to attack a counterclaim? They would then proceed to list those documents. Conversely, the defendant might seek documents to attack the claim or to support a counterclaim and affirmative defenses.
Draft the request and send to the opposing party or the party\’s attorney.
For the request for admissions, determine what you need to ask. In writing, identify the party requesting the admissions and the responder. Number each request consecutively and separate out each.
Assure that each request is full and complete. Narrowly construe each request. That is, make it very clear what you\’re asking. Serve the request for admissions.
A discovery document consists of three sections. The first section defines terms used in the request. Instructions provide guidance on how to respond to the request. Then there\’s the actual request.
Written discovery requests differ from each other in fundamental ways, including the way each request is posited. Adhere to the requirements for each request.
There are some basic similarities between depositions and written discovery. They\’re all used to gather evidence. The responder can object to questions. The responder faces consequences for not answering. But unlike written discovery, depositions have few limitations on the number of questions asked, parties talk to people in person, and notices and subpoenas are required to be filed. In depositions, parties can immediately stop upon an objection by the opposing party, and the judge can be called.
For depositions, determine the answers you need, witnesses and order of witnesses. Give the opposition three possible dates for the deposition.
Determine the location and hire a court reporter. Once the date is set, file a notice of deposition, a notice of serving subpoena, and a subpoena or subpoena ducis ticum with the court.
Send notices and subpoenas as appropriate to witnesses and or their counsel. Prepare exhibits and questions.
On the day of the deposition, arrive at the location early and allow the court reporter to set up. Organize important documents and questions for easy access. The court reporter will swear in each witness and number exhibits.
Introduce yourself and tell the witness what to expect.
Begin with questions about the witness, then move on to the meat of the deposition.
Quickly move to another subject when you get the answer you want. If a party objects to a question, the judge may be called to hear the objection.
Allow for breaks during the session and review your outline during the breaks.
A subpoena is an order to a person or company to appear in court to testify. A subpoena also requires the witness to produce certain documents. The purpose of the subpoena and deposition is to gather information from parties that might not be obtainable by other means. After you draft the subpoena, have the court clerk formally issue it. Make a copy for the witness and keep an original. Serve the subpoena on the witness.
There are four main ways to respond to requests for discovery. You can simply not respond, but consider this in light of your strategy and the consequences.
An untimely or nonresponse can be seen as a waiver of objections and privilege. Nonresponses to admissions may be deemed admitted. Let\’s discuss the remaining choices.
You can claim privilege. Privilege allows a witness to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed.
Work product privilege, for example, bars discovery of materials prepared by a lawyer in anticipation of litigation.
As a pro se party, you might be able to claim privilege on the same grounds. A claim of privilege requires a protective order, which instructs one party to cease discovery of a particular piece of information because that information is privileged.
You can object to discovery. That is, you can refuse to answer on the basis of relevance, ambiguity, claim of privilege, or other grounds. The party requesting discovery can file a motion to compel in response to objections, non answers, and inadequate responses.
You can answer the requests as asked. If you do so, answer in a timely manner and truthfully. As shown here, respond to each individual request appropriately depending on the type of request.
Once you get discovery back, review what you have. Note objections, nonanswers, inadequate answers, improperly redacted documents, missing pages, and so on. Determine when to file the motion and whether there is a precondition or prerequisite to filing it.
For instance, some jurisdictions require a good faith effort to contact a responding party to request better discovery responses before filing a motion to compel.
For each nonanswer, retype the specific discovery request, the response, and reasons for compelling further responses. Schedule a hearing on the motion.
In this lesson, we begin with things to know about the discovery stage, including definitions, discovery instruments, filings, and related topics.
In conducting discovery, we discussed drafting of each discovery request, taking depositions, and the subpoena.
The last section looked at responding to and reviewing discovery requests, including privilege, grounds for objection, and the motion to compel.
Next up, lesson five, civil procedure at the trial stage.