Litigation can be a lengthy and frustrating process. Even seemingly “simple” cases can take a long time to reach a resolution, whether they conclude with a settlement agreement or a jury verdict. There are many reasons that lawsuits can take so long; everything from a court’s crowded docket to pre-trial challenges regarding the sufficiency of the complaint or the validity of the cause of action. However, what usually consumes the most time and effort between the time a lawsuit is filed and the time it concludes is discovery.
Why is Discovery Important?
“Discovery” is the term used to describe the process through which the parties obtain information and evidence regarding the issues in the lawsuit. It can involve slogging through thousands of documents and emails as well as hours of depositions of witnesses that may ultimately not have much to say. But it is designed to make sure that neither party hides the ball and that all relevant facts regarding the case are disclosed. While it may often lack the drama of a trial, the discovery phase of litigation is critically important and can often determine whether a case is won or lost or whether one party or the other may want to rethink their settlement posture.
Federal courts as well as state courts have extensive rules that govern the discovery process. In Mississippi, Rules 26-37 of the Mississippi Rules of Civil Procedure set forth how and when information is to be exchanged, the kinds of information that can be requested and obtained, and what happens in the event of disputes during discovery.
While there are many aspects to discovery, there are three primary methods parties can use to obtain crucial evidence and information:
- Interrogatories are written questions that are posed to the opposing party about the subject of the case. The answers have to be delivered within a set period of time, and the responses are deemed to be under oath. In addition to obtaining information, answers to interrogatories can be used later in the case to support motions or impeach a party whose testimony on the witness stand contradict those they gave in their interrogatory answers.
- Requests for Production. A Request for Production is used to obtain copies of documents and electronically stored information from the other party. In the past (and still in some cases), this could involve the photocopying and exchange of boxes of documents that could take up whole rooms. Now, more and more records are produced in electronic formats, no doubt saving thousands of trees every year. Whether on paper or on a laptop, each page that is produced needs to be reviewed by the producing party’s attorney before delivery to make sure that no privileged or unrequested documents are produced. Then, these documents need to be reviewed by the requesting attorney.
- Depositions are like interviews conducted under oath in the presence of a court reporter, attorneys for all parties, and sometimes the other party themselves. Opposing counsel will ask the opposing party or third-party witnesses questions designed to discover relevant information or lock in their sworn testimony such that it can be used later if they attempt to change their answers.
There are additional discovery methods that are often used, such as subpoenas to non-party witnesses, requests for admissions, or physical or mental examinations. Also, parties sometimes engage in lengthy battles over whether a request is appropriate or whether a party has produced all information they were supposed to. The process can take time, as parties search for documents, schedule depositions, or fight over any number of issues.
At Rushing & Guice, it is our goal to resolve disputes as efficiently and quickly as possible while still protecting our clients’ interests and achieving the optimal result. As time-consuming and frustrating as the discovery process can sometimes be, it is a critical part of any lawsuit, and one which can play a decisive role in determining whether that optimal result will be obtained.
This article has been prepared by Rushing & Guice, P.L.L.C. for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.