Utilizing Different Discovery Tactics
The civil litigation process at both Federal and State levels follows the same progression: the initial pleadings are served on the opposing party, and an answer is filed in return. At this point, the Defendant is primed to file any dispositive motions to dismiss under Civil Rule 12, but what happens when both parties want to go all the way and proceed to the fact-finding and document gathering stage? This stage is referred to as Discovery, and it is one of the more time-consuming and expense-encompassing stages because both parties are actively trying to develop the relevant facts and to obtain information necessary either to obtain further discovery, or proceed with a motion for summary judgment under Civil Rule 56. There are different tools in an attorney’s toolbox which helps them accomplish this phase, but which devices are best for which scenarios? Below is a brief discussion on when to use what device.
What is “relevant” information?
It’s important to note that the scope of discovery is specified in Civil Rule 26, which in Washington states that “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”
“Relevance” is an evidentiary term, and it’s codified at Federal Rule of Evidence No. 401 and Washington Rule of Evidence 401. Evidence is “relevant” when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Only “relevant” evidence is admissible in a case, and under the whole legal spectrum, any evidence that you can obtain which is remotely related to the claims, defenses, assertions, or facts of a complaint, will be deemed “relevant” under the purpose of this rule. There is an undue prejudice balancing test under FRE 403 and ER 403 which is the court’s safeguard on excluding certain types of evidence, but that is a discussion best saved for another blog post.
What is important to remember is that during discovery, the parties should only seek to obtain evidence which can make any fact which is “of consequence” to the action either more or less probable. To do that, court rules have authorized various decides for doing so, such as interrogatories and requests for production, requests for admission, depositions and subpoenas, requests for entry upon land and physical examination, and ancillary devices such as the motion to compel.
Interrogatories and Requests for Production are the “bread and butter” of any litigation case.
Under Civil Rule 33 and 34, a party may “propound” (that is, the formal legal term “to serve”) interrogatories and requests for production to a named-party in the same document. Interrogatories aim to ask a question to which the responding party gives an open answer not limited to “yes” or “no”. Requests for production direct the responding party to produce documents, either in physical or electronic form (although electronic form is the most-preferred among today’s practitioners) to the requesting party. Attorneys and paralegals frequently spend multitudes of billable hours drafting the requests and responding to requests. This is where really interacting with your client to get honest good faith answers and documents in response to discovery, along with redacting and asserting privilege can make or break the case. Some jurisdictions have limits on how many interrogatories you can propound, so it’s a good idea to limit the interrogatories to non-compound requests and to keep track of how many have been propounded throughout the lifetime of the case. It is also a good idea to have an attorney or a paralegal keep a running Discovery Legend as to what has been produced, in response to which RFP, and to keep all of these documents organized and easily accessible to the legal team and clients.
Requests for Admission are strategic, but also fatal if not timely answered.
Requests for Admission are a subtle discovery decide where the propounding party asks the responding party to admit certain facts, either with yes or no. While this device might seem innocuous, Civil Rule 36 provides that a party must answer the requests fully within 30 days, or the request for admission IS DEEMED ADMITTED BY OPERATION OF LAW. A well-structured set of requests for admissions in the off chance that the responding party fails to answer within the requested timeline can be hugely advantageous in preparing a motion for summary judgment to resolve the case. This device is commonly propounded alongside interrogatories and requests for production, but not within the same document. If you are a fanatic of chess, you can use this device to strategically ask the questions which will direct the responding party into a corner, and help you advance your case forward.
Depositions and Subpoenas can give you an edge where your opponent might not expect it.
Any party to a lawsuit after the summons and complaint have been served may obtain the deposition upon oral examination of another named party. This means that one party can obtain the oral testimony of another party in a structured proceeding before a court reporter or other individual authorized to take testimony under the Court Rules. Civil Rule 30 governs depositions upon oral examination, and if there is a compelling interest to depose an unrelated third-party, Civil Rule 30 allows the parties to pair a notice of deposition with a Civil Rule 45 subpoena to compel their attendance at the deposition. This is a powerful device where attorneys can compel individuals with material knowledge of the case to give their testimony and have it formalized in a deposition transcript. The transcript itself is valuable evidence which can be published at trial, or utilized in a declaration ancillary to a motion. Frequently, attorneys seek to depose the opposing party, corporate representatives of a party under Civil Rule 30(b)(6), or external third-parties to the action who have material knowledge (such as a service provider, financial institution, treating medical provider, etc.).
Request for Entry Upon Land and Physical Examinations have special use cases.
In real estate litigation, it may be useful for the parties to enter upon the land in controversy and inspect the premises. Civil Rule 34 allows for the parties to request entry upon the land which is relevant to the action in order to inspect. This can be a great tool for obtaining photographic evidence, a general knowledge of the area in dispute, or inviting experts onto the land to collect measurements and opine regarding the land entered. In contrast, Civil Rule 35 allows for parties to apply via a motion and order for good cause to require a named-party to submit to a physical or mental examination. This device is frequently used in personal injury litigation where the physical condition of a party is in dispute. It is important to note that this device is only limited to compelling the named-parties to an action, and does not apply to third-parties. Additionally, the moving party must demonstrate “good cause” as to why the physical or mental examination is needed before an impartial medical professional, when the same can be accomplished by less intrusive means such as answering interrogatories, propounding responsive medical records, or answering requests for admission.
The CR 26(i) conference should not be feared, but a Motion to Compel should be.
Under Civil Rule 26(i), before any party can move to compel a response or compliance with any of the discovery rules specified in Civil Rules 26-37, the parties must “meet and confer” before the court entertains any such motion. The purpose of this is two-fold: first, to keep the court record not privy to any discovery material which would not be introduced or filed during the discovery phase. Second, to alleviate the backlog of the judiciary and reduce the stress associated with additional motion practice. Usually, parties are able to resolve differences and either grant an extension or offer some litigation consideration for not pursuing any motions to compel. However, because discovery is continuing in nature until a specified discovery cut-off date, parties are free to amend and supplement their discovery in line with the rules of civil practice.
In the event that the parties cannot agree on how to take discovery further, CR 37 allows for any party to move for a motion to compel discovery. While the motion itself isn’t scary in nature, the attorney-fee provision allows for the prevailing party on the motion to obtain the costs incurred in bringing the motion as a sort of deterrent to the non-responsive party. If financial interests are one of the top priorities of your client, avoiding motions to compel, and losing motions to compel, should be made a priority.
Discovery is a signal of the intensity of litigation, and paralegals are in the best position to offer strategy and tips regarding the same.
Often times, paralegals are the individuals assigned to devise discovery or to review what has been produced. Some paralegals make it their whole livelihood simply reviewing discovery on a contract basis and providing no other service simply because the importance of proper discovery review is high in developing the progression of your case. As such, paralegals have seen it all and are prepared with substantive and procedural strategies to help you advance your case. Paralegals are also in the best position to give attorneys practical advice regarding how expensive the next phase of discovery is going to be, and either helping to motivate the client to reach a settlement proposal, or to engage in alternative dispute resolution before discovery costs are incurred.
Discovery is one of the most flexible stages of the litigation process, but it should not be disregarded as unimportant. Additionally, it should not be feared if you are a small firm or a solo practitioner. Paralegals can guide you through the process of generating discovery questions, along with a comprehensive discovery plan so you can help fill the holes in the facts of your case and position yourself for the best future outcome. At Momentum Paralegal Services, we have decades of discovery experience drafting requests, subpoenas, and motions to compel. We would be happy to assist you with your discovery needs. Don’t delay: reach out to a paralegal now so you can get ahead of the curve of discovery, and not stuck behind mountains of work.