We have been blogging on recent developments in the Commercial Division for over a year now–over 430 posts. Our posts normally focus on the legal aspects of court decisions in commercial litigation. This post marks the beginning of a different kind of post here: one directed to clients rather than other commercial litigators.
We are calling these new posts Client Q & A’s, because they are written in the form of answers to questions we get from non-lawyer clients. Our introductory post is entitled Why Do I Have To Give Evidence To My Opponent?
Why Do I Have To Give Evidence To My Opponent?
By John M. Lundin.
One of the things often overlooked about civil litigation in the United States is that, if you are in a lawsuit, you likely will have to give evidence to your opponent, including evidence that it can use against you at trial. In big lawsuits, this exchange of evidence—usually called discovery—can be the most expensive part of the lawsuit. Here are some key things to know about a litigant’s obligations to give discovery before trial.
Normally, each party in a lawsuit gets to demand that the other parties turn over documents relating to the lawsuit. These requests, usually called document demands or document requests, can be very broad. The standard for what must be turned over varies from state to state and between the states and the federal courts, but usually an opponent can ask for anything relevant to the case, or sometimes even anything that could lead to the discovery of relevant evidence, even if the documents themselves are not relevant. And, the documents you will have to produce are not just paper stored in a filing cabinet, but also include evidence stored in electronic form, such as word processing files, databases and e-mails. You might also be called upon to produce documents held by others if you have the right to obtain and produce them, such as bank records, documents exchanged with your accountant, or documents you previously provided to a lawyer.
Finding and producing all these documents can, in a large case, be very expensive and time consuming. But it has to be done. Courts do not look kindly at litigants who fail or refuse to provide discovery, and no matter how bad you think the evidence is for you, it almost certainly is not as bad as what will happen if the court finds out that you had it and did not produce it.
Of course, this does not mean that you have to give up anything your opponent asks for no matter the cost. Courts are willing to limit discovery if the importance of the evidence is outweighed by the cost of finding and producing it. There also are procedures for protecting the confidentiality of sensitive evidence, such as trade secrets or business plans. And some categories of documents, such as your communications with your lawyers, generally are protected by privilege and do not have to be produced at all.
In addition to producing documents, you might have to give written responses to questions called interrogatories. Very generally, interrogatories have to be questions to which there is a relatively short answer, although you might also have to provide relevant data, such as sales data. As with document productions, courts are willing to limit the scope of interrogatories if they are inappropriate or too burdensome. Some courts also limit the number and type of allowed interrogatories in their local rules.
Normally, the parties to a civil lawsuit have the right to depose each other. In a deposition, a witness is asked questions under oath by their opponent’s attorney. The testimony normally is recorded by a person called a court reporter, who prepares a written transcript of the testimony. In general, if you are deposed, you will have to answer any question put to you unless it asks for confidential communications between you and your attorney, but there are some other minor exceptions. In federal court, the default rule is that each person can be deposed for no more than one day of seven hours, but courts will for good reason allow longer depositions. State court rules vary; some allow multiple days of depositions. However, the amount of time a deposition can go will be limited by the court to what it considers reasonable given the circumstances.
Not only can the parties to a lawsuit gather evidence from each other, their lawyers normally also can serve subpoenas on people and businesses that are not parties to the lawsuit to get relevant documents and to get deposition testimony.
Discovery can add significantly to the time and expense of litigation, which can be frustrating, but it also means that, by the time you get to trial, the material facts of a case normally will all be on the table. This is one of the reasons most civil cases do not go to trial. Once all the evidence is out, it usually is possible to anticipate the odds of success at trial, leading to settlement or, if the relevant facts all point in favor of one opponent or the other, to a decision by the court without a trial.
A big part of our job as business litigators is managing the discovery process to make sure that it is no more burdensome on you (or expensive) than necessary and at the same time making sure that we get the evidence you need from your adversary and others to prove your claim or defense. We do this through application not just of our knowledge of the law of discovery, but also through our experience with project management and our technical skills in managing both the process of collecting electronic records from your files (documents on your computers or central servers and e-mail) and using the sophisticated electronic databases that manage and analyze large collections of evidence.