Part 4 of LPI’s “Back to Basics” Series
Who can forget that iconic scene from the movie “My Cousin Vinny” where Marissa Tomei explains to Joe Pesci that the District Attorney has to disclose all the evidence and information in his possession because the law says there can be no surprises? While that scene is referencing a criminal case, the same is true of most cases brought before the courts. This process is called discovery.
Discovery
During this phase of the case, parties obtain information and evidence from each other that can be used to support or disprove claims in the lawsuit. It is one of the most important tools in the civil process, affecting legal strategy, settlement negotiations, and preparation for trial. Each side is given the opportunity to “discover” facts and evidence from the other side. It is the procedure through which the attorneys are able to assess the facts, evaluate the witnesses, and discover additional information that may or may not have been available when the lawsuit was initially filed.
While this article discusses discovery from a civil case perspective, discovery is also a very important component of unlawful detainer, family law, and arbitration cases. Discovery is conducted at both the state and federal court levels, although they have differing timelines and rules that govern the process.
Generally, the types of discovery you will work with include:
- Form Interrogatories – Judicial Council form with pre-written questions directed to a party and answered under oath (verified) in writing.
- Special Interrogatories – Specific questions directed to the answering party. Must be its own question, cannot contain subparts, or be compound or complex. Special Interrogatories are limited to 35 questions. Any questions beyond the 35 must be accompanied by a “Declaration for Additional Discovery” commonly called the “Rule of 35.”
- Supplemental Interrogatories – Requests that ask for previously served interrogatories to be updated with any additional or new information since service of the original interrogatories.
- Request/Demand for Production or Inspection of Documents and Things – Requests for production may be used to inspect and copy documents or tangible items held by the other party. There is no limit on the number of demands that can be served on a party.
- Request for Admissions – Used to request that the party admit or deny statements of fact, not questions. This can serve to narrow the disputed areas of a case. It is important to pay attention to RFAs because if the deadline to respond is overlooked and the propounding party makes a motion to deem the admissions made, the responding party stands to lose its case. Just as with special interrogatories, the number of requests for admission cannot exceed 35.
Discovery is used to find out things like: what the parties plan to say about the case; what facts or witnesses support each side; what information or documents could be used as evidence. In state court cases, the plaintiff may commence the discovery process on a defendant either ten days after service of the summons and complaint, or after the defendant has “appeared” (filed their answer). The defendant may commence the discovery process immediately upon receipt of the summons and complaint.
There are strict deadlines that apply to the discovery phase of a case.
- Discovery Cut-Off – the last day to complete discovery is 30 days before the initial trial date. (Exceptions apply in arbitration). The continuance or postponement of a trial date does not mean that discovery can be reopened.
- Discovery Motions – must be heard on or before the 15th day prior to the initial trial date. Motions concerning expert discovery must be heard no later than the 10th day before the initial trial date.
- Last Day to Respond to Discovery – generally 30 days from the date on the proof of service (plus time for service).
Discovery cut-offs and timelines for federal court are generally set by the assigned judge and/or local rules.
The propounding party (party serving the discovery) must serve a copy of the discovery requests on all parties who have appeared in the action. The responding party must do the same when serving its responses. The PROPOUNDING party always KEEPS THE ORIGINAL discovery and SENDS A COPY. The responding party will send an original response and keep a copy. This way, the propounding party always has a complete set of originals – – the original discovery document that was served on the responding party, and the original answer or response that was provided by the responding party.
All responses to Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission must be accompanied by a Verification signed by the client.
Remember that your proof of service on discovery is UNSIGNED until after you actually serve the document.
Note re Federal Court: There are no form interrogatories or special interrogatories in federal court. They are simply called interrogatories. Unlike state court practice, you cannot sign a declaration to propound more than 25 interrogatories; instead, you either have to stipulate with opposing counsel to exceed that limit or seek leave of court. (Rule 33(a)(1).)
Depositions
A deposition is a legal procedure where oral testimony, under oath, is obtained through direct examination and cross-examination of a party or witness in advance of a trial or hearing. The testimony is preserved in writing and audio/video technology. Taken before a certified shorthand/court reporter, and then printed in book format, called the deposition “transcript,” the transcript can then be offered as evidence at trial. Depositions are an extremely effective and instrumental tool in the discovery process.
The “deponent” is the person whose deposition is being taken. A plaintiff may serve a notice of deposition on defendant(s) any date that is 20 days after service of the summons and complaint, or once an appearance has been made by the defendant. On the other hand, a defendant may serve a deposition notice immediately after they have been served or have made their first appearance, whichever is first.
The deposition of a witness by all counsel cannot exceed seven hours of total testimony (except by the witness’ own counsel). However, the parties may stipulate to a longer period of time if desired. No second deposition of a deponent can be scheduled or noticed unless by stipulation or by order of the court.
At least 10 days’ notice must be given when noticing a deposition and must state the following in the notice:
- Name of Deponent
- Location of Deposition
- Date and Time
- Use of Audio/Video Technology
- Notice of Intent to Use Video Deposition at Trial
- Required Documents
Objections to a Notice of Taking Deposition must be served at least three calendar days before the date of the deposition. If served three calendar days before, service must be personal. In federal court, the objection must be raised within a “reasonable time.”
The location of the deposition must be within 75 miles of the deponent’s address, or within the county where the action is pending, and within 150 miles of the deponent’s residence. Witness fees are only paid to non-party witnesses at the rate of $35/day, plus $0.20/mile/round trip.
The noticing party is responsible for obtaining the court reporter and should confirm the deposition with the court reporter the day before the deposition. A courtesy copy of the deposition notice should be provided to the court reporter for purposes of setting up the caption page of the transcript and identifying the parties, venue, case number, etc.
A transcript of the deposition will be prepared by the court reporter and provided for review and correction of errors. Any corrections must be returned to the court reporter within 30 days of receipt of the initial transcript.
NOTE: NEVER, EVER OPEN A SEALED ORIGINAL DEPOSITION TRANSCRIPT! It is to remain sealed until the first day of trial, when it is opened by the court.
Categorized in: Legal Procedure
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