In Part 1 of this Article we looked at the first or Pleadings Phase of a business lawsuit in Florida. This part will examine the second or Discovery Phase. In the discovery phase the parties try to verify what they think they know and learn information of which they were unaware. They do this with the other party or parties in the lawsuit and with parties outside the lawsuit known as third-parties.
This exchange of information in discovery can be done through depositions or through certain pleadings also called paper discovery. Those include interrogatories,
requests to produce, and requests for admissions. The Rules of Procedure that govern civil lawsuits in Florida and past cases or precedent that have interpreted those Rules provide for and limit this discovery. How depositions work Probably the most recognized discovery method and that which is most familiar to non-lawyers are depositions. Depositions are essentially just question and answer sessions under oath conducted by a lawyer. Unlike some of the other discovery options available a party can use a deposition to obtain or clarify information and to even obtain documents from another party in the lawsuit or from a third-party.
They are commonly recorded by a stenographer also called a court reporter that the party taking the deposition hires and pays. Depositions can also be videotaped in addition to the court reporter. As with the court reporter, the party taking the deposition hires and pays for the videographer in most cases.
Depositions are normally also coordinated between the parties unless a Judge orders them and prescribes the time and location for them. Ordinarily because lawyers are required to conduct themselves in a professional manner this is all coordinated very easily between the parties without the need or expense of involving the Judge.
Depositions with parties are arranged by noticed but can also be by subpoena. Depositions taken of a third-party or non-party to a lawsuit can not be done by notice and require a subpoena. If you receive a subpoena for documents or deposition you should read my separate article on what to do if you receive a subpoena. Likewise, if you are going to be deposed, my separate article on what you should know before being deposed can be of value. Interrogatories, Document Requests, and Admissions In addition to depositions, other mechanisms available to parties in a lawsuit are interrogatories, requests to produce documents, and requests for admissions. When and which of these discovery methods to use is largely the judgment call of your attorney, but he or she should at least explain the options to you and the plan for using them in the overall discovery program.
Interrogatories are limited in number and ask the other side in a lawsuit to answer questions under oath, similar to what happens in a deposition, but they are not the same kind of questions.
Requests to produce ask for documents or categories of documents relevant to the lawsuit and likewise have certain limitations and restrictions placed upon them.
Requests for admissions ask the other side to admit or deny specific facts or validate documents to save time by not having to do so later. Motions to Compel When discovery requests go beyond what is allowed or they are perceived to do so, they are often met with motions filed by the recipient to which the requesting party can reply. This is commonly called motion practice. The disputes in this phase are either resolved by and between the lawyers or by the Judge in a hearing. Sometimes these issues can grow quite complex and involve unique issues touching on trade secrets, confidential business information, and electronic materials. Discovery of Digital Data In the past several years, obtaining electronic documents and data in a lawsuit has occupied an increasingly important role in the discovery phase. This has come about largely as a consequence of how businesses and people store and use information. Few businesses have a file cabinet with paper files nowadays; most have sophisticated cloud-based IT solutions because those have become inexpensive and multiply the ability of the business to generate profit.
This area of discovery of electronically stored information has aptly become known as e-discovery and is one of the newest and hottest topics in the legal industry. It has also created a new form of notice in the litigation hold letter or lit hold notice. If you would like to know how to react and respond to one of these you can review my separate article on litigation holds.
In order to maintain pace with both its business clients and this evolving area of the law, the Law Office of David Steinfeld has embraced technology in the service it provides and David Steinfeld has taught numerous continuing education classes to Judges and to hundreds of lawyers on e-discovery. Mr. Steinfeld is regularly called upon by the Florida Bar, the Palm Beach County Bar, and other groups to speak on e-discovery. He maintains special relationships with e-discovery software companies that allow the Law Office of David Steinfeld to obtain preferred pricing to benefit its clients. Part 3 of this article will examine the Resolution Phase
