Using Discovery Tools in Litigation

keith-1Today, we continue with our series on litigation and we look at discovery in litigation. There is an old saying in litigation that cases are won and lost in discovery. This is the tool used to gather those facts that will be critical to prosecuting or defending your action.

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Understanding The Role of Discovery in Litigation
By Robert J. Enos, Esq.

Once a Complaint and Answer have been filed both parties commence “discovery”.  Discovery is to law as the market is to cooking.  The better at selection of ingredients you are the better chance the meal will turn out the way you want.  Discovery is the process whereby the parties gather evidence from the other side or from third parties.  Discovery includes “written discovery” such as interrogatories, request for production of documents, and requests for admissions, which are all answered under penalty of perjury.  Discovery also includes “depositions” which is the process of questioning a party or witness under oath before a licensed court reporter.

pexels-photo-268460Discovery is used to obtain “material evidence” which is broader than “relevant evidence”.  The difference being that in discovery a much broader parameter is allowed to discover evidence than what is allowed to be introduced in court.   What this means is evidence a party obtained during a deposition might be material but may later still be excluded at trial because it is not relevant.  The test is whether the material evidence sought is reasonably calculated to lead to the discovery of admissible evidence.  California discovery law favors liberal application of discovery rights and therefore the relevance standard is broadly construed. Doubts as to relevance are usually resolved in favor of permitting discovery.

Information subject to an evidentiary privilege, despite the fact is might be relevant to the subject matter, is protected from discovery unless the privilege is waived.  Unlike evidentiary privileges, attorneys have a right to keep their own work protected.  Attorney work product protection is not necessarily absolute.  The statutory purpose of the work product doctrine is to preserve the right to prepare one’s case for trial with that degree of privacy necessary to encourage thorough preparation and investigation of all sides and to prevent the other side from taking unfair advantage of their adversary’s work product.

If an adverse party fails to comply with the discovery obligations the solution is to bring a “Motion to Compel”.  Motions to compel or limit discovery must show a good faith attempt to informally resolve the dispute before filing the motion.  However, if the adverse party fails or refuses to comply then an order seeking compliance should be filed.  The court’s order compelling answers, production of documents, or to deem matters admitted may also include an  order for costs and attorney fees as a sanction against the adverse party for forcing the moving party to file the motion in the first place.  In rare cases, if the motion to compel is denied, the court may order the moving party to pay the responding party’s expenses and attorney fees for costs incurred opposing the motion to compel.

In preparing discovery it is important to think ahead to where the proof of the case or the defense at trial will lay.  If you are the plaintiff, think about the closing statement and the factual elements needed to prove your case.  The same thing goes for the defense, tailor the discovery to confirm the plaintiff cannot prove their case by examining the facts they need to prove, and the facts needed to prove any specific defense.

The attorneys of BPE Law Group, PC. have been advising our clients on real estate and business issues for over 20 years and have significant experience navigating all aspects of the residential real estate transaction. If you have questions concerning any legal matter, give us a call at (916) 966-2260 or e-mail Keith at Our flat fee consults for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.