Tuesday, 23 August 2016

Discovery Process Inspection Request

Part of the lawsuit process is obtaining information to support your claims, undermine the other side’s claims or evaluate the strengths and weaknesses on each side. As part of formal discovery each side may request to inspect documents and things from the other side. This can be paper files, electronic records, inspection and copying of computer systems, other physical evidence such as personal property, and even land.

Similar to interrogatories (written questions seeking information) inspection requests are typically prepared by the asking side’s attorney and responded to by the other side’s attorney. As with the questions, the answers are sworn to under penalty of perjury. So trouble may ensue for evasion.

The responses may come back with objections. The party may agree to comply with the request. The responding party may not be able to comply with the request because the documents never existed or were destroyed in come conveniently timed fire. Even though you may be disappointed not to get the information, it is important to run down what is available, what is not available, and why it is not available. Of course the destruction of evidence, especially under questionable circumstances, may damage or destroy credibility or a case.

As with interrogatories, if the asking party is not satisfied with the responses they received they may ask the court for help with getting the information or getting the responding party to comply with their obligations. This starts with an informal effort at working it out called the meet and confer process. This unfolds much like a negotiation where the attorneys go back and forth about requirements for the requests, the merits of the objections, and the standards for responding to requests. Some things may be clarified or worked out. For the remaining, the requesting party can ask the court for help. This is in the form of a discovery motion.

Discovery motions can be time consuming to prepare and to respond to. In ruling on the motion the court commonly imposes a financial consequence on the losing party and/or their attorneys for being wrong. This is called monetary sanctions. They are based on the expense to prepare the motion. How much is awarded very much depends on the judge, what was involved, how close the call was, and the apparent good faith of those involved.

So between the time and money involved in preparing or responding to a discovery motion and the exposure for the other side’s expenses, discovery disputes can become expensive.

However the stakes are also high as the information can make or break a case.

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