What is Written Discovery and it’s Applications In Court
Discovery is a pre-trial process in litigation that is used to gather information and evidence for use during a trial. It is a critical part of the litigation process as it allows both parties to gather the necessary information and evidence to build their case. The discovery process has four main types: interrogatories, requests for production of documents, requests for admissions, and depositions.
In this article, we will explore one aspect of discovery – written discovery – in greater detail, identify six elements of written discovery, and explain their purpose and application.
What is Written Discovery?
Written discovery is the process wherein one party in a court case seeks information from the other side through written means. The goal of written discovery is to compel the other side to provide all relevant information that pertains to the dispute at hand. Written discovery may include written questions, requests for the production of documents, and requests for admissions.
Six Elements of Written Discovery
1. Interrogatories
Interrogatories are written questions that one party sends to the other party in a legal dispute. The party receiving the interrogatories is required to respond in writing under penalty of perjury. Interrogatories are used to obtain information about:
– the facts of the case;
– the legal theories being advanced by the other party;
– the witnesses that will be called at trial; and
– any documents that relate to the dispute.
Interrogatories can be a powerful discovery tool as they force the other party to reveal any weaknesses in their case or to divulge information that they may not want to otherwise.
2. Requests for the Production of Documents
Requests for the production of documents are written requests that one party sends to the other party in a legal dispute. They require the party receiving the request to produce certain documents relevant to the dispute. The documents that may be requested include:
– correspondence, including emails;
– contracts;
– invoices;
– receipts;
– financial documents; and
– medical records.
Requests for the production of documents can be a powerful discovery tool and can lead to the discovery of evidence that may prove to be critical in winning a case.
3. Requests for Admissions
Requests for Admissions are written requests that one party sends to the other party in a legal dispute. They require the party receiving the request to admit or deny certain facts related to the dispute. The purpose of requests for admissions is to narrow any issues that are in dispute by either party. Complete distribution of facts eliminates the need for parties to prove what otherwise would be undisputed at trial.
For example, if a party is seeking damages for lost wages due to an injury, the other side might send a request for admission asking the injured party to admit or deny that they were employed at the time of the injury in question. If the injured party admits that they were employed, then the issue of employment status is resolved, and the parties can focus on other issues that might be in dispute.
4. Production of Electronically Stored Information
Production of Electronically Stored Information (ESI) is a relatively new element of written discovery. It refers to a request for any electronic data – emails, text messages, social media posts, etc. – that are relevant to the dispute at hand.
As the world increasingly moves towards digital communications, electronic information has become an essential element in many lawsuits. The collection, forensic investigation, and review of electronically stored information is necessary for litigation purposes. Discovery of such information may lead to a competitive edge to winning a lawsuit.
Providing ESI in a suitable format is mandatory for maintaining chain of custody, and authenticity of produced ESI.
5. Requests for Medical Examinations
When a plaintiff is claiming injury, one of the forms of discovery available to the defendant is a medical examination. The defendant can make a written demand for the plaintiff to be examined by a neutral physician of their own choosing.
The purpose of a medical examination is to obtain a physician’s documentation of the plaintiff’s injuries and to determine the extent of any injuries from before and after the alleged incident. The results of the medical examination can potentially refute the severity of the plaintiff’s claims of physical injury damages.
6. Requests for Admission of Expert Testimony
At times, facts alone may not be sufficient to bolster a legal argument. When evidence for a case requires more than a fact-finding exercise, experts may be utilized to provide context and support one party’s position. Expert witnesses are professionals who possess specialized knowledge in a certain field, such as medical or scientific, and may be called upon to explain technical or scientific aspects of a case.
Requests for admission of expert testimony require one or both parties to submit a list of expert witnesses they are planning to use at trial, along with a summary of the expert’s conclusions and opinions. The other side will then have an opportunity to either admit or deny the expert opinions being presented and may depose the expert before trial.
How Written Discovery is Applied
The written discovery process is generally conducted in several stages:
1. Meet and confer stage
Before filing any requests or motions, both parties and their attorneys will meet to discuss the claims and defenses, identify the dispute’s contested issues, and explore the discovery to be conducted. Each party should identify their objectives for the case and articulate what they believe they need to prevail.
2. Written discovery requests
The party seeking information will draft written discovery requests, which the other party must respond to within a certain period, usually 30 days.
3. Response to written discovery
The party receiving the written discovery questions will respond with as much information as possible. They may assert objections to the questions if they believe that they are overly burdensome, irrelevant, or privileged.
4. Meet and confer stage (second time)
If the parties are unable to resolve any disputed discovery issues during the drafting of the written discovery responses, they may need to engage in another meet and confer stage to discuss any objections and iron out any remaining issues or disputes.
5. Motion to compel
If a party believes that the other party has not responded adequately to the written discovery requests, they may file a motion to compel. The motion to compel seeks to get the other party to comply with the initial written discovery requests, which might be backed up by the judge’s subpoena power or that of the court.
Conclusion
Written discovery is a critical part of the litigation process. Lawyers use written discovery to obtain information and evidence that may help them build their case. The six elements of written discovery discussed in this article – interrogatories, requests for the production of documents, requests for admissions, production of electronically stored information, requests for medical examinations, and requests for admission of expert testimony – are all designed to help attorneys gather the information and evidence they need to present their case successfully.
Discovery can be a time-consuming and often complicated process; however, if done correctly, it can provide a significant advantage for one party over the other. Understanding the ins and outs of written discovery can be crucial in the preparation of a winning litigation strategy.
Recent Cases and Examples
The written discovery process is an essential component of litigation, allowing both parties to collect information and evidence relevant to their respective claims. With the constant evolution of technology and the adaptation of electronic media, the written discovery process has evolved to encompass electronic documents and communication, including emails, social media posts, and text messages.
In this article, we will explore six recent cases, which illustrate the use and importance of the six elements of written discovery in various litigation scenarios.
1. Interrogatory Example: Caterpillar Inc. vs. Schwarzenegger
Caterpillar Inc. sued the State of California, claiming that the state’s regulations forcing diesel-powered vehicles to convert to alternative fuel violated both the US Constitution’s Commerce Clause and the Supremacy Clause. Caterpillar Inc. is an American machinery manufacturer who made diesel engines for large vehicles such as trucks and buses.
The State of California, in response, filed a Motion to Dismiss Caterpillar Inc.’s complaint. One of Caterpillar’s interrogatories stated: “Describe the evidence that you rely upon to argue that the 2007 regulations are not good for the climate, and that the regulations would harm economic development because there are no feasible alternatives.”
This interrogatory sought to force the state to reveal its evidence and rationale, and provide support for its claims concerning the environmental impact of Caterpillar’s product.
2. Request for Production Example: Sikhs for Justice vs. Facebook
Sikhs for Justice, a Non-Governmental Organization (NGO), sued Facebook, alleging that the company had enabled hate speech and content that violated international law and human rights responsible for fueling violence against the Sikh community, especially in India. The NGO also attempted to bring this case under the Alien Tort Statute.
Sikhs for Justice requested Facebook to produce documents related to their content moderation strategies, policies, and procedures, including the training materials provided to their employees and third-party moderators.
The request for production of documents was an attempt to collect evidence supporting the NGO’s allegations that Facebook had failed to uphold its responsibilities and enabled hateful content directed at the Sikh community.
3. Request for Admission Example: O’Keefe vs. Lee County School District
William O’Keefe, a Florida resident, sued Lee County School District (LCSD) in a personal injury lawsuit, alleging that the school board failed to ensure the safety of a school bus which caused an accident injuring him.
The LCSD’s request for admission sought an admission from O’Keefe, asking for an admission that he had not sought medical treatment for over a year after the accident nor reported it to anyone. This request sought to expose any potential holes in O’Keefe’s case, as O’Keefe sought a settlement from the school district.
4. Production of Electronically Stored Information Example: U.S. Securities and Exchange Commission vs. Goldman Sachs
The U.S. Securities and Exchange Commission (SEC) filed a lawsuit against Goldman Sachs, alleging that the bank misled investors by structuring CDOs (Collateralized Debt Obligations) and betting against them while marketing them to clients as safe investments. The lawsuit claimed that these actions breached SEC’s antifraud provisions.
As the lawsuit proceeded, the SEC sought to obtain electronically stored information (ESI), including emails, instant messages, and other documents that were stored electronically by Goldman Sachs. This discovery process aimed to provide evidence substantiating the SEC’s allegations against Goldman Sachs, which was subject to significant regulatory scrutiny and public scrutiny.
5. Request for Medical Examination Example: George vs. Ford Motor Company
Patricia George, a resident of Pennsylvania, filed a product liability suit against Ford Motor Company, alleging that a defect in a car airbag caused her injuries in a road accident.
During the litigation, Ford Motor Company requested George to submit to an independent medical examination. The request intended to obtain evidence that could refute George’s claims, and the medical report would provide an expert witness report for trial if necessary.
6. Request for Admission of Expert Testimony Example: Apple vs. Samsung
Apple filed a patent infringement suit against Samsung, alleging that its smartphones infringed on Apple’s patented designs, among other patent claims.
In their request for admission of expert testimony, Apple sought to introduce the testimony of experts who would highlight the designs and features that were unique to Apple’s products. Samsung denied that these features and designs were unique to Apple’s products and countered with their experts.
These flanks allow parties to bolster their claims and supplement their arguments with the opinions and evidence of qualified and certified experts.
Conclusion
The above cases illustrate the importance of using the six elements of written discovery and the value of each discovery process in litigation. By utilizing written discovery, attorneys can gather evidence and information to help build their case, identify potential weaknesses in the other side’s argument, and secure a favorable outcome for their client.
The rapid pace of technological development requires courts to adjust their rules and procedures continually, making a more efficient, productive, and cost-effective resolution of disputes. Parties on both sides can use written discovery to discover information that is relevant to their claims and defenses.
