U.S. Litigation Basics – The American Discovery Process (Part Two)

In part one, we broke down the basics of what the discovery process in the United States is and why we have it. In today’s post, we’re going to cover the different discovery mechanisms and the pros and cons of each.

Interrogatories

Interrogatories are written questions that require written responses. (Note: not all jurisdictions allow for interrogatories).

Advantages:

• They’re relatively inexpensive. Interrogatories are typically far less costly than depositions.
• Interrogatories require a party to provide information that is “available” to it. In contrast, a party can state it “doesn’t recall” something in the moment.
• Sometimes, interrogatories are also better than depositions for pinning down the contentions of a party.
• Interrogatories are often used as the starting point in discovery. They are used to gather overarching information that can later be pinned down to the details. Or, they can be used as follow-up after other discovery methods are used.

Disadvantages:

• In most cases, there is a limit on the number of how many interrogatories can be served.
• Lawyers help their clients write their responses, or sometimes write them completely – with lengthy objections to boot. There’s no element of catching a witness off guard. In the same vein, interrogatory responses aren’t really going to help in sizing up a party/witness’s presentability or credibility – a key factor in determining whether to go to trial or not.
• There’s no opportunity for immediate follow-up. The typical rule is that a party gets thirty days to serve responses, which makes for a slow process.

Requests for Production or Inspection Demands

Any party can demand to inspect another party’s relevant documents, things, or property in discovery. The purpose of this mechanism is to allow parties to review all hard evidence in the case, in their original forms. All parties in a lawsuit have a duty to preserve evidence.

Advantages:

• This process allows for a thorough inspection by a client and their lawyer. Most cases have at least hundreds of documents to review. And, property inspections can be as long as reasonably necessary.
• There is no limit on how many demands can be served (unlike interrogatories and requests for admission).

Disadvantages:

• There are considerations that specially come into play with document requests – concerns like overbreadth, privacy, and various privileges (attorney work product, confidentiality). If the demand is not complied with voluntarily, motion practice usually results.
• Where a case involves thousands of documents, the process of reviewing and producing documents will get very expensive.

Requests for Admission

Requests for admission are written requests that a party admit the genuineness of specific documents, or the truth of a fact, opinion relating to a fact, or application of law to a fact. Requests for admission are different from everything else mentioned above because they don’t seek to find facts – they seek to establish them.

Advantages:

• Requests for admission have preclusive effect, and denials may result in an award of costs of proof if they turn out to be false.
• Requests for admission can be the most powerful tool in discovery if used correctly and at the right time – not only in getting the parties to understand their respective strengths and weaknesses, but also in making sure any future proceeding or trial is as efficient as possible.
• If the opposing party admis a key fact, that may open the door to dispositive motion practice – which means you can avoid trial completely (or at least partially on certain claims).

Disadvantages:

• Unfortunately, requests for admission are also typically limited in number.
• While as stated above, you can get a key admission out of an adversary, this is rare.

Depositions

Depositions are question-and-answer sessions that occur in person, with a court reporter transcribing everything simultaneously. Prior to, witnesses are often prepped and may even have obligations to review certain documents or company procedures (for example, if you’re testifying as your company’s “person most knowledgeable”).

Advantages:

• Arguably, depositions provide the forum for the most effective questioning. If the witness evades, you can follow-up. The witness’ memory and credibility are tested in real time. And spontaneous admissions are more likely to occur.
• They are quicker to set up – they can be set on 10 days’ notice.
• The option of video recording is available – which can have a great impact in jury trials down the line.

Disadvantages:

• As mentioned above, the witness can answer questions with “I don’t know” or “I don’t remember.” All that’s available during a deposition is a witness’ personal knowledge.
• They’re expensive. Depositions require a lot of preparation and out of pocket costs like a court reporter, sometimes a videographer, a transcript, etc.