Discovery Requirements

Discovery is a broad subject that casts a wide net and the Rules of Civil Procedure permit discovery into any matter, not privileged, which is relevant to the subject matter involved in the pending action.  The following are procedures in place as part of the discovery process.

  • Interrogatories — These are written questions given to the other side that must be answered under oath.
  • Request for Production — This is a request to provide documents.
  • Depositions — Testimony given under oath taken at the attorney’s office.

Businesses will have a duty to preserve information when litigation is reasonably anticipated.  You may not begin destroying documents when you receive a demand letter or when a suit has been filed.  If you have a document retention policy, you must suspend its operation so you can preserve relevant evidence.  You must also preserve electronic data on all computers, cloud storage, cell phones and any hand held devices that could contain relevant information.  Meta data must also be preserved.  This is the data the computer generates indicating document changes, authors of documents and when changes were made or files saved.

Social media can also have relevant data and the company should have a clear policy on what employees can and cannot do.

When documents are produced they must be in a reasonably usable form.  This means you cannot provide unorganized boxes of your records.  The information must be organized to respond to any request and must be in a format (pdf, hard copy, disk) that is usable.  You must be careful on documents provided to ensure attorney client letters are not included or any evidence that is not admissible.  This is an expensive process and could cost tens of thousands of dollars for even a modest case.