When you are involved in a lawsuit, there comes a time where you have to submit evidence to the court that supports your position in the case. This happens whether you are the plaintiff or defendant. You may have documents and your own testimony to help prove your case or defense.
But there also may be other documents and testimony you will want in order to support your position. If you need to obtain these items from the other party or from witnesses, using the discovery process and subpoenas is necessary if the information is not voluntarily handed over to you.
Recap of Civil Procedure
After a plaintiff files a complaint, the defendant either responds with an answer and affirmative defenses, possibly with counterclaims, or attempts a pre-answer dismissal for a lack of a cause of action. After the defendant answers the complaint, the case enters into the discovery stage.
In discovery, the parties have the opportunity to demand documents and written responses and/or testimony. A party can serve a document demand, written interrogatories and a notice of deposition. The demand for documents should be relevant to the proceeding and not overbroad. The same is true for interrogatories. There is much dispute between parties as to what documents are necessary. Courts will often issue an order setting forth what document a party needs to produce or what interrogatories a party needs to answer.
At a deposition, your attorney will depose your adversary about the issues in the case. The adversary will most likely have counsel for advisement. A deposition is important because it can “lock or box in” a witness as to testimony that the witness may give at trial.
A party to a lawsuit can use subpoenas to obtain documents and information from nonparty individuals or entities. A subpoena is usually served with notice to the other party. The party receiving the subpoena must respond or object to the subpoena, usually making a motion to quash the subpoena. If the party fails to object and fails to provide the documents or information or appear for a deposition, the court could find that party to be in contempt of court upon a motion of the party issuing the subpoena.
When a party produces documents, it is important for that party to number the pages to make sure that there is no confusion about what was produced. This eliminates accusations of not producing certain documents and prevents accusations of producing documents the party did not produce.
Electronic discovery (or e-discovery) refers to discovery in a civil litigation that deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). This data is subject to local rules and agreed-upon processes, and is often reviewed for privilege and relevance before being turned over to opposing counsel.
Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence. The preservation of metadata from electronic documents creates special challenges to prevent spoliation.
If you find yourself in a lawsuit or are contemplating one, speak with your attorney about these issues.