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
