16 Mar 2014

“Discovery”: A Time-Consuming But Critical Part of a Lawsuit

Many if not most Arkansas lawsuits, whether they conclude with a settlement agreement or a jury verdict, can take years to reach a resolution. The slow turning of the wheels of justice can be a source of understandable frustration for clients, as well as for attorneys who are trying to get their clients a successful result as quickly and efficiently as possible.

 

There are many reasons that the process takes so long; everything from a court’s crowded docket to pre-trial challenges regarding the sufficiency of the complaint or the validity of the cause of action.  But the principal reason the pre-trial phase of litigation can take a while can be summed up in one word: discovery.

‘Discovery’ is the term used to describe the process of requesting and exchanging information between the parties. It’s the part of trial law that they don’t show during one-hour legal TV shows.  It can involve slogging through thousands of documents and emails as well as depositions of witnesses and parties that may not have much to say.  But it is designed to make sure that neither party hides the ball and that all relevant facts regarding the case are disclosed. While it may often lack the drama of a trial, the discovery phase of litigation is critically important and can often determine whether a case is won or lost or whether one party or the other may want to rethink their settlement posture.

 

Federal courts as well as Arkansas state courts have extensive rules that govern the discovery process. In Arkansas, Rules 26-37 of the Arkansas Rules of Civil Procedure set forth how and when information is to be exchanged, the kinds of information that can be requested and obtained, and what happens in the event of disputes during discovery.

 

While there are many aspects to discovery, there are three main ways parties can obtain crucial evidence and information:

 

Interrogatories

Interrogatories are written questions that are posed to the opposing party about the subject of the case. The answers have to be delivered within a set period of time, and the responses are deemed to be under oath. In addition to obtaining information, answers to interrogatories can be used later in the case to support motions or impeach a party whose testimony on the witness stand contradict those they gave in their interrogatory answers.

 

Requests for Production

A Request for Production is used to obtain copies of documents and electronically stored information from the other party. In the past (and still in some cases), this could involve the photocopying and exchange of boxes of documents that could take up whole rooms, with each page needing to be reviewed by the producing party’s attorney before delivery to make sure that no privileged or unrequested documents are produced. Then, these documents need to be reviewed by the requesting attorney. When tens of thousands or hundreds of thousands of documents are produced, and when only a small fraction of those actually contain useful information, this process can be time-consuming and tedious. As more and more information is stored electronically, the rules have been updated to address the production of electronic information.

 

Depositions

Depositions are like interviews conducted under oath in the presence of a court reporter, attorneys for all parties and sometimes the other party themselves. Opposing counsel will ask the opposing party or third-party witnesses questions designed to discover relevant information or lock in their sworn testimony such that it can be used later if they attempt to change their answers.

 

There are additional aspects to the discovery process, such as subpoenas to non-party witnesses, requests for admissions, or physical or mental examinations. Also, parties sometimes engage in lengthy battles over whether a request is appropriate or whether a party has produced all information they were supposed to. The process can take time, as parties search for documents, schedule depositions, or fight over any number of issues. As frustrating as the delay can be, and as much as attorneys may try to mover the process along as quickly as possible, it is a critical part of any lawsuit, and one which good trial attorneys know can make all the difference.

© 2013 Don Kendall | Disclaimer.