January 13, 2014 —
When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction that would shut down his new company. For this week, we look at the next phase of litigation, discovery.
From the outside, discovery often appears tedious, burdensome and voluminous. Stories abound of “discovery wars” and lawyers burying opposing parties under a mountain of paper or hiding documents and witnesses. This scene from “The Rainmaker” starring Matt Damon is Hollywood’s take:
While these types of situations can and do happen and tend to give discovery a black-eye, the reality is that the discovery process is essential to litigation and can be the point in which many cases are won and lost. Remember, the famous Courtroom scene from the same movie comes on cross-examination of the Insurance Company, Great Benefit, where Matt Damon has him reading from an internal document related to the value of bone marrow transplants; a document which would have been found in discovery.
Discovery generally occurs in three areas: document production, written interrogatories and depositions. In document production, each party requests records from the other party which they belief to be reasonably calculated to lead to admissible evidence. In our lawsuit, relevant documentation would include client and customer lists, e-mail and other correspondence from Dick and his business partners about the formation of the new company and correspondence to clients and customers, Secondly, the parties exchange written discovery questions called interrogatories. These questions are generally designed to gather broader amounts of information and sources of discovery. For example, the lawyers in Dick’s case would ask Dick to identify all witnesses with knowledge about the new company and its clients and customers. Finally, the parties can conduct depositions. Depositions are usually an in-person examination (question and answer) done before a Court Reporter. The proceeding is attended by all parties and taken under oath. Depositions of the parties can be recorded in order to gain information and also of parties and witnesses to preserve testimony.
Due to the discovery process, many of the questions and answers in a trial are known to all parties involved. Although unexpected events and statements do occur at trial, true “AHA!” moments are rare. Most of the exhibits have been seen and exchanged and most of the witnesses have already testified in some format.
While we are all used to powerful scenes in the Courtroom from movie scripts, it is discovery where the meat and bones of these scenes are made. Hard work and lots of digging make a Courtroom scene like this possible: