Discovery and Document Review in Business Litigation
Businesses can find discover requests unsettling. A good business litigation attorney will be able to educate businesses on what information they may have to reveal. Read on to learn more.
When most people think of litigation, they imagine high-powered attorneys in great suits arguing masterfully in front of a judge and jury. And while trial is certainly a part of any litigation practice, the work that’s done before the trial begins is often what takes the bulk of the time, energy and expertise spent on a case.
What Is Discovery?
Discovery is the process of gathering as much information and evidence about a case before moving ahead with the adjudication proceedings. Discovery is among the first actions taken in any litigation matter, and usually begins right after an answer has been filed to the plaintiff’s complaint.
Discovery includes the collection of many types of documents. These may include:
1. Written interrogatories--These are lists of written questions presented to the opposing party that they must answer, also in writing.
2. Requests for production of documents--This is a request for the opposing party to produce any relevant documents that they may have under their control. These documents will then be reviewed for relevant information by the requesting party.
3. Requests for admission of facts--A party may request the opposing party admit or deny certain relevant facts relating to the case.
4. Subpoenas of Third-parties--Subpoenas may be sent to third-parties outside of the action, requesting information like written interrogatories or documents under the third-party’s control.
Objections to Discovery Requests
Just like evidence presented in a courtroom, parties have the opportunity to object to any interrogatories or requests for production that they feel fall outside of the scope of discovery or the rules of evidence. Reasons for objections include:
● That the discovery request seeks irrelevant information
● That the request is too broad and not narrowly tailored enough to produce only relevant information
● That the request presents an undue burden, which usually means that the burden of producing the information outweighs the relevance of the evidence, and finally;
● That the requested information is not discoverable because it is covered by attorney-client privilege, or some other legal privilege protecting it from discovery.
When parties object to discovery requests, they should put their objections and their legal basis in writing before a certain date. If the discovery disputes are not able to be reconciled without court intervention, then a party may file a Motion to Compel. Now, the judge will hear the discovery requests and objection, and will determine the proper decision.
Privilege and Work-Product
Most litigants have heard of the attorney-client privilege before they are faced with litigation. This privilege exists between a party and their attorney, and covers all communications made during the course of representation. The privilege only applies to clients, not any outside parties.
Similarly, work-product is protected from discovery. Work-product prevents the opposing party from getting access to documents or communications prepared in the anticipation of litigation. Attorney-client privilege and work-product rules are governed by Section 502 of the Federal Rules of Civil Procedure.
A final method of collecting relevant evidence in a litigation matter is through depositions. A deposition is essentially a chance for attorneys to ask a witness questions on the record, similarly to questioning a witness on the stand in a court proceeding. The person being interviewed is called the deponent, and is subject to direct and cross examination. The entire interview is recorded by a court recorder, and the opposing party’s counsel is permitted to make objections.
If you are required to give a deposition during the discovery phase of business litigation, your Chicago business lawyers will fully explain the procedure and will spend time helping you prepare.
ABOUT THE AUTHOR: Peter C. John
Peter C. John is a business litigator with extensive experience with the discovery process. He is prepared to help his clients prepare for the rigors of business litigation, and will ensure that the discovery process is conducted properly and that any and all protected information does not get into the wrong hands.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.