Fun with Discovery: How discovery works in Wisconsin - introduction.
Over the next few posts, I plan on breaking down one of the most expensive and often most stressful part of litigation: discovery. Specifically, I will focus on: (1) the purpose and strategy of discovery, (2) the “types” of discovery and when will they affect a party, (3) how a business can prepare and cope with discovery. As always, I’m not posting legal advice and you won’t see any case citations, legal tests, or statutes. My goal is to lay out a roadmap of discovery so a potential litigant can feel a bit more comfortable with the discovery process.
Strategy and Purpose of Wisconsin Discovery
Discovery is, on a basic level, the tool used by attorneys to locate evidence that has some bearing on a filed lawsuit. Both plaintiff and defendant have the right to request the other to reveal all types of information, ranging from tangible, physical things to a person’s memories and recollections. The body of information may be very small in volume (a box of papers) or the body of information may fill an entire warehouse (boxes piled to the ceiling) - as always, it just depends on the case. Further, each party’s requests are to be respected and observed, *ideally* without any judicial involvement, unless the parties have a disagreement they cannot settle independent of the judge - professionalism and negotiation skills of an attorney are very important to avoid irritating the judge.
Discovery can make people and businesses feel violated as opposing counsel sifts through one’s paperwork, email accounts, demands that you or your people answer questions (some of which make most people feel very uncomfortable and would never be asked in any other situation), and in some cases require those same people to submit to physical inspections or psychological evaluations. These experiences mask the true intent and goal of discovery, that being revelation of information that can substantiate (or undermine) a party’s claim - information that becomes trial evidence.
Other, more specific goals of discovery include capturing information from a perishable source or from a witness who might be unavailable should a trial be required, evaluating the nature and utility of potential witnesses in anticipation of trial, avoiding surprises during trial for either party, determining that facts thought to exist do not exist at all, and finding particulars that encourage settlement. The real strategy of discovery comes in the timing and achievement of these goals - who to depose and when, what documents should be requested and how do we ask for them, is it worth the trouble to inspect a piece of property or machinery and when should we do it.
In summary, discovery is not a tool of abuse (although some attorneys may use it that way), nor is it a fishing expedition. Rather, discovery is focused on revealing facts, specifically those facts that are: relevant to the claims/defenses of the parties, reasonably likely to be admitted at trial, and are not privileged (i.e. protected under Wisconsin law).
Types of Discovery
In the next few posts, I will go over the basic types of discovery: depositions, interrogatories, requests for admission, and inspections (of places, people, and things). The next topic: depositions.
Thursday, February 28th, 2008
