Fundamentals of Prosecuting and Defending Lawsuits in Hawaii - Vol. 2 - Discovery

DISCOVERY: An Overview of a Lawyer’s Tools to Discover Relevant Facts

The second phase of a lawsuit begins when the parties attempt to discover and develop all the relevant facts of the case.  To this end, lawyers have multiple tools at their disposal to conduct “Discovery,” including:  (A) Depositions; (B) Interrogatories; (C) Document Production; (D) Admissions; (E) Expert Testimony.

A.    Depositions

Of all the discovery tools lawyers possess, most people are familiar with depositions.  A deposition is a very formal conversation between a lawyer and an individual (called, a “deponent” or “witness”), in which only the lawyer asks questions and the deponent’s job is to answer the lawyer’s questions.  The deponent’s testimony is made under oath and recorded by a court reporter.  Depositions are limited in scope to seven hours and do not typically occur in court.  Depositions are usually taken in the lawyer’s office or at some location agreed upon in advance.  The deponent is permitted to have a lawyer present at the deposition.  The deponent’s lawyer’s job is to make sure the lawyer conducting the deposition asks relevant, clear, and non-argumentative questions, and to make objections to protect the deponent’s rights and/or privileges.

Any party to a lawsuit may notice and take the deposition of any other party, or any individual or entity that may possess relevant information to the case.  In commercial or business litigation, parties often engage in the practice of noticing a 30(b)(6) deposition, which is a short-hand way of saying a deposition of someone who represents the business entity.  In that situation, the party noticing the deposition must provide the business entity’s representative an overview of the topics that may be covered in the deposition.  This is done to ensure that the business entity’s representative is prepared and capable of answering questions that the lawyer may ask.  This formality does not occur in non-30(b)(6) depositions.

Depositions are used to gather facts and sort through issues that may not have been addressed in depth with the written discovery tools discussed later in this article.  If the case later proceeds to trial, lawyers will often use deposition testimony to point out any inconsistencies with the   deposition testimony and the statements the witness is making at trial to undercut the credibility of the witness.  As a result, preparing for depositions thoroughly and addressing questions clearly and concisely is paramount.

B.     Interrogatories

The term “interrogatory” is a lawyer’s way of saying “written question to another party.” When a lawyer prepares and serves a request for answers to interrogatories, the party served with the request has thirty (30) days to respond under oath.  Almost all parties that reach the discovery phase of litigation will prepare and serve interrogatories on the other parties in the lawsuit.  A party, however, only has sixty (60) interrogatories it can send to each other party.  In other words, a Plaintiff that has sued two defendants can send a total of 120 interrogatories, split evenly among both defendants.  Sometimes, at the very early stages of litigation, a party served with an interrogatory request may not know enough to answer each interrogatory completely.  To prevent prejudice to the requesting party from incomplete interrogatory responses, the answering party is required to supplement its answers on an ongoing basis.  The answering party’s attorney will likely review the responses and interpose objections to the form or scope of a request, or instruct the client not to answer, if answering the interrogatory would violate a privilege such as the attorney-client privilege. 

C.     Document Productions

Yet another useful tool in the lawyer’s toolbox is the Request for Production of Documents.  This discovery device allows a party to force another party to produce documents relevant to the claims or defenses asserted in the lawsuit.  In essence, this type of discovery permits the requesting party to see the responding party’s cards (i.e., relevant communications, documents, reports, emails, photographs, etc.).  Subpoenas duces tecum, a related discovery tool, can be used when a party seeks to obtain documents from an individual or entity not involved in the litigation.  A party that receives a request for documents is required to perform a thorough search of all sources and produce documents responsive to the request.  The right to refuse or withhold production of certain types of documents is extremely limited.  Only in circumstances where producing a document would violate law or one of the responding party’s privileges can a document be withheld.  The party refusing to produce the document must create a “privilege log” that describes the document or communication withheld without revealing its content.  Unlike interrogatory requests, a party may, subject to objection, propound an unlimited number of document requests. 

D.    Admissions

A party may serve Requests for Admissions upon another party in the lawsuit.  Requests for Admissions, or Admissions in short, is a method of targeting brief, binary, questions to another party.  The responding party may either “admit” or “deny” the requesting party’s statement, or respond by explaining why it can neither admit, nor deny the matter.  Admissions are used to pin down undisputed facts and winnow the factual field down to the core disputed issues.  Moreover, Admissions are commonly used to authenticate documents that may be used as evidence in trial. This has the benefit of reducing trial time and focusing the litigation. 

Robert Klein