Previously, we have focused on what is discoverable. This article focuses on how those materials are discovered.

Mandatory Disclosure

Once a case is filed, certain documents are required to be disclosed. The purpose of this is to promote settlement instead of going through the time and costs of discovery. The timeline for these documents like like this:

Filing -> service -> meet-and-confer (to establish a discovery schedule before the scheduling hearing) -> Required Disclosures and the Proposed schedule -> Scheduling hearing.

However, this timeline can be disrupted by other motions. For example, a motion to dismiss may be issued and a party may not want to disclose that information until the motion has been ruled on. In this instance, Rule 26(a)(1)(C) provides three ways the required disclosures can be delayed.

  1. Through agreement of the parties
  2. Object in the discovery plan
  3. Move for a court order for a delay

There are four categories of materials that are required to be disclosed:

  1. Names and addresses of “good” witnesses.
  2. Evidence that supports its claim or defense
  3. Damages
  4. Insurance Coverage

Interrogatories

Interrogatories are questions a party asks to the other party. They are typically one of the first things done in discovery to collect the basic information necessary to gather key witnesses, and prepare information for depositions. Most of the time, the questions answered do not vastly help the requesting attorney, but they are always utilized and are required to have responses. Currently, the rules of civil procedure require that interrogatories do not exceed 25 questions. If the other party refuses to answer a question, then a Rule 37 motion to compel can be ordered (assuming they met and conferred with good faith to resolve the issue first).

However, the same objections to other forms of discovery apply to interrogatories. The requested information must not be burdensome (proportionality), must be relevant to the facts, claims, or defenses of the case, and must not request privileged information. If any question reaches past those stipulations, the question can be challenged.

Interestingly, the number 1 question asked during an interrogatories was to list the names and addresses of all individuals who have relevant information about the case.

Final note is that responses are signed by the client while the objections are signed by the attorney.

Request to Produce Documents

Other than the documents that are automatically produced, a party can request additional documents that are relevant to claims and defenses. In the request, the main requirement (in addition to discovery rules) is that the materials requested are described “with reasonable particularity.”

These are copies of paper documents.

Depositions and Subpoenas

A deposition is an interview with a witness. The attorney conducting the interview is “taking the deposition” while the opposition “defends the deposition.” Note for practice: Do not let the other party get you off the record.

The notice for a deposition is served onto the attorney of the other party, not the client. Importantly, the date and time for the deposition needs to be reasonable. If the date and time is not reasonable (e.g. scheduled over a wedding or major holiday), then the parties must meet and confer to try and resolve. If the issue is not resolved, then a protective order.

A subpoena is an order to come and testify while a subpoena duces tecum is a request to bring certain information or documents with them to testify.

Electronically Stored Information

Technology has developed significantly over time. Once upon a time, discovery was easy. You sue, compel any paper documents (usually not very many) and then try the case. With the expansion of technology, much more information is transferred and stored.

Disclaimer

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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