Discovery Phase in Litigation – Anatomy of a Lawsuit Part VI

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step.

To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit and Responding to a Lawsuit.

Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle.

 

Once the initial pleadings are filed in the case and assuming that the case survives the first phase, it will move into the discovery phase. This is a big chunk of the lawsuit and one of the most expensive phases of litigation and has numerous components some of which are:

Research and Strategy

Litigation is a dynamic process and no two cases are exactly the same. Therefore, research and strategy is an ongoing component of any lawsuit and will take place from the case’s inception to the very end. Whether you are the plaintiff or defendant, your theories and strategy for the case will likely change as discovery allows you to get more information, access to documents and communications, and as you learn the other side’s positions and arguments. This is where having a professional with access to research resources and experience really helps.

Written Discovery

Written discovery is a tool that allows the parties in a lawsuit to “discover” information through written questions and requests for documents and things on issues related to the lawsuit. The standard is whether the information sought is “relevant to the subject matter” of the litigation and whether it is “reasonably calculated to lead to discovery of admissible evidence” at trial.

At this phase, you will hear about interrogatories (form and special), requests for admissions, and inspection demands. Each tool seeks a different type of information and serves different purposes. Additionally, there are specific rules related to format, time to respond, and the maximum number allowable that differ for limited and unlimited cases. Failure to comply with the rules could adversely affect your case.

Depositions

A deposition is a testimony taken before trial, under oath, and preserved in writing by a court reporter. These days, they are also often recorded on video. Like written discovery, it is a tool to get information that will hopefully support your case. The interactive nature of depositions allow for follow up questions and the ability to size up a witness’s credibility and demeanor. Additionally, they allow you to obtain discovery from a nonparty witness. However, they are expensive and time-consuming. Your attorney will consider the cost v. benefit of deposing certain witnesses, timing, and strategy on how to use the deposition. If you are being deposed, your attorney will also serve as the gatekeeper to ensure that the deposition is conducted in accordance with applicable discovery rules.

The rules are complicated and mistakes could be costly.

Schedule a call if you have questions about California litigation.

Next up, learn about mediation.

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