Mandatory disclosures and Easter eggs
September 20, 2016
Not in every respect, but litigation is like an Easter egg hunt. All right, there are seldom anxious six-year-olds in pinafores and the eggs are rarely colored. But setting that aside, the analogy is apt.
You see, preparing for a lawsuit is like being on a treasure hunt. And the treasure being sought is information. As Francis Bacon once observed, "knowledge is power." And information leads to knowledge, which may in turn be wielded in the courtroom like a Sword of Damocles.
"Discovery" is the process by which information in the legal context is gathered. It is a many-headed Hydra.
Shortly after a lawsuit is commenced, the parties must exchange mandatory disclosures of certain information. No one needs to ask, it is simply required and expected. These are, as the title suggests, mandatory disclosures.
If you want more, well then, you have to ask for it.
"Rogs" are really lawyer-talk for interrogatories. An interrogatory is a question posed by one party to the other, the answer to which is sworn under oath.
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Let's say I'm curious if the other party may have stowed away some money in a foreign bank account or two. My "rog" might read, "Have you stashed away any cash in any foreign bank account in the last five years and, if so, please identify in which account." As the answer must be sworn to, and any fib is perjury, which may be defined as lying under oath.
RFP is an acronym for Requests for Production. What an RFP consists of is appeal or demand to provide certain documents which may be important to the matters in contest. Those keen among you will note that I say "may be" rather than "are" important to the litigation. You see, discovery is broader than what may or may not be relevant at trial.
How to be relevant
In order to be relevant — and therefore admissible at trial — a thing must tend to prove a matter of fact significant to the case. In discovery, however, the thing requested must only have a tendency to lead to relevant information. It is the difference between a diamond and something that could be a diamond or might not be or which might lead you to a diamond.
With an RFP, I ask. You, as the recipient, must answer. Going back to our foreign accounts, I might say, "Please produce all bank statements from each foreign bank account identified in your Rog for the last five years."
Admissions are, well, really requests for the same. Say I want to know a very specific matter — like if you have stashed some dough overseas. My request for admission might read, "Admit you have stashed some scratch in one or more foreign account on at least one occasion within the last five years." Your duty is either to admit the issue I have posed or deny it. In either event, you will do so under oath. And if you fudge a little, see above for perjury.
A "depo," or a deposition, is oral testimony, taken under oath outside of a courtroom. By rule a depo may run up to seven hours. A similar, though not wholly analogous concept, is an inquisition, although generally no auto da fe results at the end of inquiry. Instead, a deposition is much like testimony offered by one squirming in the witness stand at trial. Only broader.
As in other discovery tools, the metric in a depo is that the questioning "may" reasonably lead to admissible evidence but which does not itself have to be admissible. Not surprisingly, with up to seven hours at the questioner's disposal, this inquiry can be quite thorough and more commonly than not involves the deponent (the guy or gal being deposed) reviewing and explaining certain documents.
Physical inspections are just what they sound like. Say a party puts his or her health in question as a key issue in the litigation. For example, the plaintiff or party seeking compensation for his or her injuries, claims that he is impaired in one way or another. The party against whom he is seeking redress does not simply have the take the plaintiff's word for it but, instead, can request a physical exam. That exam must take place by someone qualified to perform it. For example, a licensed physician.
Besides the possibility of perjury for making stuff up, here's the thing about discovery. First, like a true treasure hunt, you usually find things that are useful to your case — or in the negative, help you learn that the case may not be so good after all. The other thing is impeachment.
Say in your deposition you say that maybe, just once, you may have put some money in a foreign bank account. But then at trial you maintain that you have never, ever, absolutely never, have put a dime anywhere but in the good 'ol USA." The wise attorney will refer to the deposition transcript, and with a flourish, will hand it to the guy visibly twisting on the witness stand.
"Mr. So-and-So," the attorney will say, as he hands the witness the transcript. "Do you remember when I deposed you last spring."
"And you remember at that time you swore to tell the truth?"
"And you swore to tell the truth today too, isn't that correct?"
"This is a transcript of your deposition — look familiar? — and see here on page 19, I asked you if you had ever hidden away money in a foreign bank account?"
"You said maybe just one time. Didn't you? Can you please read lines 15-23 into the record?"
"That's what I said."
"So, Mr. So-and-So, were you lying to me then or are you lying to me now?" That, ladies and gentlemen is impeachment, the act of being hoisted by your own petard.
Litigation is like an Easter egg hunt. Even absent the Buster Brown patent leathers and wicker baskets, the dedicated gatherer may discovery delicacies aplenty.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation. He may be reached at 970-926-4461 and Robbins@SLBLaw.com.