Discoveries

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 187-202

187

Chapter 13 Discoveries

CHAPTER 13

is chapter discusses the “show and tell” stage in the civil litigation action

which is the discoveries stage.

THE DISCOVERIES STAGE

Discovery Plan, ∏ & ∆

• 60 days after pleadings close

• not served; not filed

Affidavit of Documents, ∏ & ∆

• before examination for discovery

• served; not filed

Examinations for Discovery, ∏ or ∆

• maximum 7 hours per party

• before setting action down for trial

∏ (Greek pi) = Plaintiff

∆ (Greek delta) = Defendant

DISCOVERIES

Going to trial is much like going into an open book examination--no surprises, no histrionics; all

evidence to be used at trial must be discovered in this, the discoveries, stage.

e discoveries stage comes after the close of pleadings when all parties’ pleadings are in and the

parties can determine from the pleadings what other evidence, if any, they will require from each

other. e discoveries stage is a sorting out “show and tell” process. Each party’s lawyer sorts

out the relevant documents he or she will use as evidence at trial and tells the other about them;

hence, discovery. e purpose is to get a sense of the strength of the other side’s case and settle

or eliminate as many issues as possible out of court to cut back on court time and expense.

Methods of discovery Include: discovery of documents, examination for discovery, exam-

ination by written questions, inspection of property, and medical examination. Of these, the

discovery of documents and the examination for discovery are automatic and are rarely omit-

ted, except in the simplest and most straight forward cases. e other methods of discovery,

inspection of property and medical examination, require leave (the court’s permission).

DISCOVERY PLAN

e rst step in the discovery process is a discovery plan. Rule 29.1 of the Rules of Civil Procedure

requires the parties to consult with each other and work out a discovery plan if they intend to

obtain evidence from each other by any method of discovery.

DISCOVERIES

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188 Legal Office Procedures

Evidence must be relevant In preparing the discovery plan, the parties must consider

what evidence they would disclose, and they must select for disclosure only evidence that is

relevant to any matter in issue in the action, instead of evidence that relates to any matter in

issue in the action. In the case of electronic evidence, referred to as e-discovery, the parties should

be prepared to disclose all relevant electronic evidence and must consider the relevance, the

cost, and the format in which electronic information, such as e-mails, websites, databases, and

computer documents, will be produced, given the large volume that is often involved.

Time and content of discovery plan e parties must agree on a discovery plan the

earlier of sixty days after pleadings close, or longer if the parties agree, and must keep the discov-

ery plan updated as to any changes in the information contained in it. e discovery plan must

be in writing and must set out the following:

• the scope of discovery

• dates for serving of adavits of documents

• how and when documents will be produced

• who will be examined and when

• the duration of the examination for discovery

• any other information that is appropriate to the importance and complexity of the action

Form of discovery plan e rules do not prescribe a form for a discovery plan; hence, the

discovery plan could take any form, provided it complies with the requirements of the rule. In

practice, lawyers prepare the discovery plan in the format of a court document, Precedent 13.1.

In some cases, such as those involving a limited number of documents or a small dollar value, the

discovery plan may take the form of a letter. e discovery plan is not served or led in court.

It is a document agreed upon between the parties. If the parties fail to agree to a discovery plan,

the court may impose a discovery plan.

ROMANO v. EASTERN CAST IRON CORPORATION

Re: Wrongful Dismissal

We continue with Mr. Romano’s action. We have consulted with the defendant’s lawyers and

were able to work out a discovery plan, Precedent 13.1. We have also prepared the adavit

of documents, Precedent 13.2, which we will serve on Eastern’s lawyers, Castles & Sands.

Castles & Sands must serve us with their client’s adavit of documents as well, so that we,

too, may see the list of documents which they intend to use as evidence at the trial. Precedent

13.3 is the notice of examination which we have prepared for service on Castles & Sands. It

noties them that we have scheduled an examination for discovery where we would like to

ask questions of their client based on the documents in their client’s adavit of documents.

In the next chapter, we prepare for trial.

DISCOVERY OF DOCUMENTS

In this method of discovery, lawyers on both sides must tell each other what documents they

each will use as evidence at trial. e discovery of documents is made by preparing and serving

an adavit of documents in which lawyers disclose all of the relevant documents so that the

other side can discover what these documents are; hence, discovery of documents. e Rules

of Civil Procedure dene document to include a sound recording, videotape, lm, photograph,

chart, graph, map, plan, survey, book of account, and data and information in electronic format.

Legal TIP

Most discovery

documents are served

but seldom filed in court.

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