Posts categorized as "discovery"

What is a subpoena?

Subpoenas are legal orders to provide evidence.  There are two major types of subpoenas: (i) subpoenas that require someone to testify; and (ii) subpoenas that require someone to disclose evidence in their possession, such as documents.  These two types of subpoenas are often referred to as subpoenas (i) ad testificandum; and (ii) duces tecum.   

In the United States, judges and other court officers, including lawyers, may issue a subpoena.  If a lawyer issues a subpoena and the person subject to the subpoena fails to comply, the lawyer can ask a court to force the person to comply.

Subpoenas are especially useful for gathering evidence from third parties.  For example, let's say Patty sues David.  David is a party to the case and subject to the jurisdiction of the court so obtaining evidence from David should not be a problem for Patty.  But let's say Terry, a third-party who is not in the case, has critical evidence that Patty needs.  To obtain the evidence Patty's lawyer might rely on a subpoena, to try and compel Terry to turn over the evidence that Patty wants.  

I uploaded a video on subpoenas to YouTube:





Are expert witnesses paid?

Yes, expert witnesses are usually paid.  Experts are typically hired by one of the parties to a case and are compensated for their time developing their expert opinions.  If fact, if you look at the Federal Rules of Civil Procedure, you will see that experts are required to disclose their compensation.  

In some high profile cases experts can be paid quite a bit for their preparation time.  


What is a deposition?

A deposition is where a witness or a party must answer questions under oath before trial.  The deponent's answer are transcribed and today many depositions are videotaped.  Depositions typically take place in a conference room.  The judge is not present.  

Depositions are an important discovery device - - remember, discovery is how parties obtain and share information prior to trial in a civil litigation.   

Depositions are a useful way for lawyers to learn what witnesses will later say at trial.  A witness who contradicts his deposition testimony will come across as unbelievable at trial.   Based on deposition testimony and other evidence acquired during discovery, parties will often move for (and oppose) summary judgment.

Depositions usually take place after the parties exchange documents.  Lawyers can then ask deponents about the documents.  For example, in a business litigation, an executive might be questioned for hours or even days about emails that he sent and received.




What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery:


I heard cases in the US are public. What if there is confidential information?

This is a good point and a good question.  Yes, as a general rule, both civil and criminal cases in the United States are public.  Now that most court documents are filed electronically you can access these documents online.  Federal court documents are available through PACER ( and many state courts make documents available online, too.

But obviously some documents shouldn't be shared.  For example, parties in a business dispute might not want to disclose trade secrets.  Perhaps in a criminal case there is information that if shared publicly could put someone in danger.  If a judge agrees, certain information will be redacted and not shared with the public.

When a litigation involves confidential information one or both parties will ask the Court for a "protective order."  In a motion for a protective order a party asks the judge to issue an order that will shield confidential information from being shared with other parties and/or the public.  

For example, let's say a document contains a business secret.  The company could ask the judge for a protective order so the document does not have to be disclosed.  Alternatively, the company could ask for a protective order so that the document will be "lawyer's eyes only" - - meaning lawyers may review the documents but it cannot be disclosed to other parties and the public.  Judges will not automatically grant a motion for a protective order.  The party must provide sufficient grounds to show why it needs the protective order.



What is a motion to compel?

A motion to compel is when a party asks the Court to force another party (or sometimes a third party) to do something.  

You will often see a motion to compel during discovery.  Let's say a lawyer asks a witness to answer a question during a deposition but the witness refuses to answer that question.  Or let's say a party requests a category of documents from its adversary but the adversary declines to provide some documents.  At that point the party seeking to force the witness to answer the question or demanding the documents will file a motion to compel.  If the judge grants the motion to compel the witness will have to answer the question and the documents will need to be produced.

The federal rules of civil procedure and the individual rules of many judges in the United States encourage parties to resolve discovery disputes without resorting to motion practice.  These rules generally require the parties to have a conference, with or without the judge, to resolve the dispute before filing a motion.  


What is spoliation?

Spoliation is when a party destroys or alters evidence that he was obligated to preserve.  In the United States, a party is usually obligated to preserve evidence if he can reasonably anticipate that there will be a civil litigation.  If a party spoliates evidence, even accidentally, a judge might impose sanctions  - - and the sanctions can be serious.

 It is especially important for companies to have an appropriate policy regarding the preservation and destruction of documents to avoid getting into trouble.  In some instances there might be a relevant statute regarding the preservation of documents.  Lawyers in the US will work with corporate clients to prevent spoliation both before and after a litigation arises.  

For example, companies usually keep their emails on their computer servers for a certain period of time.  But for how long?  The company should consult with its attorney regarding how long emails will be preserved and whether certain emails should be retained for a longer period of time.  If there is a civil litigation and the company destroyed emails it should have preserved, a judge could impose penalties.

Below is a short video on spoliation.


What is Summary Judgment?

Summary Judgment allows a judge to decide that a party should win or lose on one or more claims in a civil litigation before trial.

Both federal and state courts allow parties to move for summary judgment.  In the federal court system the relevant rule is Rule 56.

 Although a party can move for summary judgment at any time before trial, usually parties ask for summary judgment after discovery because after discovery all of the evidence has been shared.

To win on summary judgment a party must show that there is no dispute over any relevant material (material = important) fact and that the party must win according to the law.  A simple way to think about summary judgment is that a party is arguing that we don't need a jury because that party has to win.  For example, if A alleges that B drove a car negligently and the evidence indisputably shows that B was not driving the car, B is entitled to summary judgment.  We don't need a trial and the judge should end the case.

Another way to think about summary judgment is that it acts as a balance against easy pleading requirements.  Keep in mind that pleading requirements in the United States are usually lax - - it is easy to start a case.  Summary judgment allows a defendant to eliminate a meritless case before trial.

Both plaintiffs and defendants can move a court for summary judgment.  If the court grants summary judgment the party wins on one or all claims.  If the court denies summary judgment, the case should proceed to trial on that claim.  For example, let's say party A sues party B for breach of contract and battery.  Party B moves for summary judgment on both claims.  The court denies the motion on the contract claim but grants the motion on the tort claim.  The contract claim should go to trial.  

Here is a short video on summary judgment:



Discovery and Settlement

I am in the process of uploading some videos to YouTube regarding discovery.  Currently on the discovery playlist are videos discussing discovery and its relationship to pleading requirements and to settlement.  

In the US, broad discovery is intended to promote "intelligent settlement."  That is, if parties have a complete picture of the evidence for and against them, they should be able to make an intelligent decision about settlement before trial.  A party can better determine the odds of prevailing and risks associated with losing at trial.  


Discovery also tends to promote settlement because the process can be expensive.  For example, instead of paying lawyers to review review documents, parties might choose to settle the case.


What is the relationship between discovery and pleading requirements?

One reason why the United States has very broad discovery is because of its generally easy pleading requirements. 


In a Complaint a plaintiff does not have to include the evidence supporting her claim.  The defendant's Answer, Affirmative Defenses, and Counterclaims will also likely have little, if any, evidence.   Discovery "cures" the shortage of facts and information at the beginning of the case.  Discovery is the process whereby after pleadings, the parties obtain and share evidence and information.    



Below is a video discussing the relationship between discovery and pleading requirements: