After the plaintiff files his Complaint and defendants file their Answer, the next (and longest) phase of civil litigation is referred to as discovery. The name evokes excitement and adventure. For example, Captain George Vancouver of the Royal Navy commanded H.M.S. Discovery in the 1790s as he explored and mapped the Pacific Northwest coastline. Vancouver named numerous local landmarks after his crew (including Joseph Whidbey, Peter Puget, and Joseph Baker), his employers (the Lords of Admiralty), and his moods (Deception Pass and Useless Bay). I have fond memories of exploring the full-scale replica of the Discovery at the Royal BC Museum during elementary school field trips in the 1970s.
Lawyers are much less exciting.
The purpose of discovery in litigation is for each side to gather relevant evidence about the case, both to potentially use at trial if the judge determines it is admissible, but also to explore the strengths and weaknesses of each party’s factual and legal positions. When I was a very young lawyer, discovery involved a lot of gamesmanship and hiding the ball. In one notorious case while I was in law school, the Supreme Court of Washington sanctioned my first Seattle law firm after its pharmaceutical company client failed to produce a smoking gun document, later leaked by a whistleblower. In the last twenty-five years, however, both the rules and legal culture have changed. A few jurisdictions either relish or can only afford “trial by ambush,” allowing for little or no effective pre-trial discovery. But today most civil litigants and counsel are expected to be forthcoming, and to avoid unnecessary expense or delay. Judges, like the parents of squabbling children, hate being dragged in to resolve petty discovery disputes. Nevertheless, there still are clients who think there must be some kind of “bad document” privilege allowing them to withhold relevant evidence. And, sadly, there are still lawyers who are willing to enable them. Even within the technical demands of the rules, some attorneys try to wear their opponents out with exhausting and intrusive demands, or unnecessarily voluminous responses. Fortunately, the shared goal of resolving cases on their merits generally prevails in the courts where I have litigated.
Of course, time and money are finite resources, and everyone needs to make strategic and tactical choices in discovery. The process remains adversarial – you need to ask good questions, and your opponent is entitled to raise valid objections. And vice versa. Everyone should be able to expect reasonable answers. Eventually. Some parties just need a little nudging.
Like my kids’ summer vacation, at the beginning of the lawsuit it seems like the discovery phase will go on forever. Then lawyers inevitably procrastinate, scrambling to finish all discovery before the cutoff date in your case schedule. Civil Rule 26 (Washington conveniently follows the order and most of the substance of the Federal Rules of Civil Procedure) describes the general principles governing the parties’ exchange of discovery requests and responses. Each party may obtain party discovery from every other party regarding any matter which is relevant to the lawsuit, other than privileged materials (such as communications with your lawyer, spouse, doctor, or priest). However, discovery should not be “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” (The rules governing the parties’ efforts to gain additional information through third-party discovery are discussed in this episode.) [Ed. note: Yes, I know the hyperlink to the future doesn’t work. Yet.]
Specific civil rules regulate each of the various discovery tools lawyers invented over the years. Requests for production, governed by Rule 34, are the discovery work horse. Regardless of whether a case involves a contract dispute, discrimination, or personal injuries, lawyers and jurors want to see the paper trail. When I started my career at a big law firm, clients still spent a fortune paying lawyers to review warehouses full of archived paper or microfilmed documents. Our firm represented Exxon in numerous lawsuits arising from the 1989 Valdez oil spill. Many of the young lawyers who started with me spent months or years living on expense accounts in Anchorage’s few hotels, gaining weight and losing spouses.
Over time, the emphasis in discovery turned to gathering “electronically stored information,” which fortunately for both clients and young litigation attorneys has become increasingly efficient to manage. Rule 34 also applies to parties’ much rarer requests to inspect other types of tangible things or real property. For example, when I was a patent litigator, judges and jurors would scratch their heads examining the various plumbing devices, counterfeit Hollywood merchandise, wrinkle-free shirt sleeves, and helicopter parts that the parties produced in discovery.
Rule 33 governs interrogatories, which is a fancy term for written questions. Interrogatories allow for more tailored inquiries and more precise answers than you can get from staring at a cryptic email chain. In our court, parties can propound up to forty interrogatories. Each “distinct subpart” is a separate interrogatory. This generates Talmudic numerology disputations, because the responding party can choose to stop answering interrogatories once it counts to forty.
The most powerful discovery tool is taking depositions, governed by Rule 30. Depositions are simultaneously a dress rehearsal for the witness’ trial testimony, as well as a way to set up (or luck into) gotcha soundbites you hope to use effectively with the judge or jury later. More importantly, depositions are an opportunity to gather key evidence in real time – without having to wait thirty days after posing each question before you read the witness’ sworn answer, no doubt overthought and lawyer-edited to death by then. As the author of the foremost treatise on evidence observed a century ago, cross-examination is “the greatest legal engine ever invented for the discovery of truth.” Effectively examining an essential witness at deposition adds more value for a client than lining up some hot shot trial counsel. A great deposition means there won’t be any trial, or that the trial (or settlement) will be on your terms.
Depositions usually take place in conference rooms. You can tell from the room’s view whether you are in the offices of a big law firm, a successful plaintiff’s boutique, a private lawyer further down the food chain, a nonprofit advocate, or a government agency. The view might instead be a reminder you’re still on the road, renting space in a strip mall from some random local process server. As we did on three occasions when the Gay Softball World Series case took me to Atlanta, Chicago, Dallas, Denver, Houston, Memphis, Minneapolis, Portland, San Francisco, and Seattle. (Click here for Roger’s GSWS Quiz.)
The lawyers I know refer to depositions as “deps.” Deps are apparently called “depos” at certain other locations along the legal food chain, or around the country, that I’ve managed to avoid.
Legend has it my defunct former firm’s law library included a VHS tape labelled “Preparing for Your Deposition” that was guaranteed to wipe anyone’s memories clean. Like in a horror movie, or Bill Gates’ deposition in the Microsoft antitrust case. Hopefully a good lawyer will instead tell you (1) listen carefully to the question, (2) let the questioning lawyer completely finish talking, (3) pause so every other lawyer, particularly yours, has a chance to make an objection for the record (but of course never for the purpose of coaching witnesses before they answer), (4) make sure you understand the question, (5) take as much time as you need, and (6) honestly answer (7) only that one question. Number 6 is the most important. Then (8) stop talking. No speeches, arguing, or crosstalk, that’s for Oscar campaign clips or self-destructive CEOs who are more loquacious than Bill Gates. Finally, (9) don’t use grunts, murmurs, and nonverbal signals in your answer. It’s hard on the hired court reporters, and results in a confusing written transcript.
At the time and place identified in the notice of deposition previously sent to all parties, the court reporter swears in the witness, then starts recording what everyone says with both a microphone and a high-tech stenographic machine. With proper notice, the deposition may also be videotaped. The lawyer who “noted” the deposition gets to go first in asking direct examination questions to the opposing party’s witness, or their own witness if the purpose of the deposition is to preserve testimony from someone who won’t be available at trial. If there are other parties to the lawsuit, on direct each of their lawyers may ask additional questions of interest to that party. If the witness comes from the opposing party, the lawyer for that side may choose to ask questions at this time. That counts as “cross examination” for purposes of keeping track of whose turn it is to interrogate the witness, but usually not in the Perry Mason-gotcha-with-leading-questions-to-a-hostile-witness sense. If you are personally represented at your deposition by a separate lawyer, he or she may also elicit testimony that will give you an opportunity to follow up on prior questions, or to clarify your answers.
Each attorney can introduce new exhibits to show to the witness, or can ask questions about previously-identified exhibits. Like an elegantly hosted meal upstairs at Downton Abbey, a smooth deposition is made possible by the minions who located and collated reams of potential exhibits. As a copy of a new dep exhibit is passed to each lawyer, the court reporter briefly takes her hands off the stenography machine – remember to stop talking for a moment – in order to mark and number the original exhibit. It may now be shown to the witness. Afterwards, the court reporter will take the marked original away. Forever. Never bring a cherished document or family keepsake into the conference room during a deposition if you suspect there’s the slightest chance some lawyer will snatch it and ask the court reporter to mark it as an exhibit. Truly painful to watch.
During the dep, direct testimony is followed by cross, then redirect, then re-cross, in a vicious cycle till everyone is worn down, or time runs out. Otherwise the structure of depositions is much less formal and much more meandering than trial testimony. During discovery, the standard is not whether it would be appropriate for the lawyer to ask the same question at trial, but whether the “information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Most objections during a deposition are made for the purpose of preserving and documenting the objection for the record. The judge will rule on disputed objections later only in the unlikely event anyone ever wants to draw attention to a specific scintillating exchange with this particular witness.
If the objection involves privilege, a lawyer may instruct the witness not to answer. Often at this point someone threatens to walk out of the deposition, or to try calling the judge’s chambers, but they seldom follow through. Meanwhile, the witness waits patiently for the lawyers to finish bickering, then tries to answer the question. If anyone can remember it. Next comes the eternal refrain “can we have the court reporter read back the question?”
Depositions are either a big production, or a huge production. A simple dep is the equivalent of putting on the annual middle school play. Trust me. I have taken or defended countless depositions in twenty-five years, and just last month I was tasked with designing the program and then attending opening night of “Dorothy in Wonderland.” As with even the most amateur theatrical endeavor, every dep consumes an immense amount of time and energy, both in preparation and in performance. Deps can be also more intrusive and unpleasant than in-your-face experimental improv, and they last even longer. And each dep cost a fortunate to mount, like the iffy off-Broadway premiere of a vanity project musical. Afterwards, choosing to have the court reporter transcribe the deposition testimony – often overnight – costs as much as producing an original cast album. In the very largest cases, key depositions require vast conference rooms and multiple broadband connections to accommodate a cast of thousands, mostly lawyers billing various clients for listening vigilantly as each waits to say “No questions from ________ at this time.”
In our normal-sized superior court case, the local rules allow each party to take “no more than 10 depositions, with each deposition limited to one day of seven hours; provided, that each party may conduct one deposition that shall be limited to two days and seven hours per day.” Guess who gets to be the double-feature deposition witness in our case.
But that’s enough lawsuit talk until our next episode. In the meantime, here are Defendants’first set of discovery requests to me, and here are my responses thirty days later. Defendants’ responses to my first set of requests for production are due tomorrow….
Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce