Note on Discovery in Litigation
Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories).
An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to the discovery process, hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant to another party’s claims or defenses. This would just result in parties potentially hiding information, concealing information, or not producing information under the pretext that such information is not relevant as determined by that party. Who wants this? Many times, disputes get resolved during discovery or after discovery runs its course as parties are able to better evaluate the strengths and weaknesses of their case based upon another party’s analysis and theories supported by the information.
Now, just because there is a more liberal approach to pursuing discovery does not mean parties have carte blanche to discover everything or go on fishing expeditions. Discovery is not intended to be a tool to harass another party by seeking evidence / information that is categorically irrelevant to the dispute at-issue. Check out this article for an example of a court granting a writ of certiorari due to the irreparable harm of a plaintiff trying to pursue categorically irrelevant discovery that could not reasonably lead to the discovery of admissible evidence.
Moreover, when parties know that there is a dispute, they have an obligation not to spoil (destroy or alter) relevant, critical evidence, specifically with electronically stored information. By not taking steps to preserve evidence, a party could be subject to discovery sanctions, the dreadful adverse inference jury instruction, or in worst-case scenarios, the striking of pleadings. Check out this article for more information on spoliation of evidence including the dreadful adverse inference jury instruction (that no party wants!).
Discovery is crucial fact-finding process in litigation to discover evidence in your case. It is also a tool used to authenticate certain evidence and/or lay the foundation for certain evidence.
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
