One of the most unique features of the American court system is the ability for parties to both civil and criminal lawsuits to demand various types of evidence from their adversary. This process is known as “discovery,” and is an important stage in most types of litigation, whether a divorce between individuals or a high-dollar dispute between companies.
Discovery typically involves an exchange of a large volume of evidence, only a small portion of which is ultimately used at trial. Failure to comply with an adversary’s discovery request can result in criminal liability for contempt of court, an adverse finding of fact (an assumption that the evidence is harmful to the non-complying party’s position), or a default judgment (automatic loss of the case).
Interrogatories
Interrogatories are written questions by one party which the other party must answer. They are generally the simplest and least expensive form of discovery. Responses to interrogatories must be under oath, and are treated as testimony by the party. In practice, interrogatories are typically carefully drafted and reviewed by lawyers before being signed by the party.
Requests for admissions are similar to interrogatories, but are treated as a separate process in many jurisdictions. These are factual statements which the responding party must either admit or deny in writing under oath. If the responding party does not admit or deny the statements within a certain period of time, they are treated as having been admitted.
Document Requests
Document requests are often the most time-consuming portion of discovery, as there are few limitations on the number and scope of relevant documents that a party can request. Document requests are often extremely broad, and it is common for parties to object to their contents and have disputes over their reasonableness. A document request may include requests for printed documents, electronically stored information (ESI), and tangible items in the other party’s possession or control. In large lawsuits, an entire team of professionals will often be retained to conduct a search and review of a party’s physical files and computer systems for relevant documents.
Documents may be destroyed, and ESI may be deleted, as part of routine and good faith operations. Many organizations have document retention policies that are intended to minimize the amount of stored information and the burden of searching for it, such as by storing all business documents on cloud servers. Once litigation is underway, a party will often need to stop the routine deletion or destruction of evidence through a “litigation hold” in order to avoid potential sanctions for failure to preserve evidence.
In federal courts, and in some state courts, parties to litigation are also required to proactively notify the other parties of certain information related to documents and information in their possession.
Depositions
A deposition is an interview of a party or witness by an attorney. Depositions are typically used for investigating the facts of a case before trial, as well as for eliciting inconsistent statements that can be used to attack the party or witness’s credibility in court.
Depositions are usually attended by the deponent (the person giving testimony), by lawyers from both sides, and by a stenographer or videographer who administers an oath and records the deposition. In many jurisdictions, depositions can be taken either in person, or by remote audio or video conferencing. Remote depositions have become more popular in the wake of the COVID-19 pandemic.
A person may offer their deposition voluntarily, or may be required to provide a deposition as a result of a subpoena served by the other side.
A deposition is usually limited to business hours over the course of one day. The deponent may be required to bring specified documents and other evidence with them.
Discovery Across Borders
A foreign party to a U.S. lawsuit is often required to respond to interrogatories and document requests once they have submitted to the jurisdiction of the U.S. court.
Depositions are more challenging in many countries. For example, parties in Japan cannot be required to give depositions by a subpoena, and even if they wish to give a deposition voluntarily, Japanese law prohibits their deposition from being taken within Japan, unless it is in a special room at a U.S. consular facility.
If evidence is needed from a foreign person or entity that is not a party to the lawsuit, it may require an order from their local court through a process known as letters rogatory.
Besides these procedural barriers, language barriers are often an issue in international discovery. Evidence may need to be translated, and language expertise may be necessary in determining appropriate keywords to use in searching for evidence.