“With the noble sentiment of ‘levelling the playing field’ so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. “Discovery” is anything but … Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal.”-Cameron Stracher
Discovery laws in the US are laws designed to provide guidance on how lawyers are to share information with one another about the case. Simply put, most cases are won and lost in the discovery phase. If the information hurts your case, you do everything you can to prevent it from being disclosed. If the information helps your case, you do everything you can to get it.
Under California state law, known as the “Civil Discovery Act” the methods and rules regarding discovery are messy, time-consuming and, as observed by Cameron Stracher, used to defeat the purpose of discovery. The competing public policies of having an efficient court system in which truth and justice are honored and preserved, while protecting the privacy of individuals, is what drives the process.
In my personal experience, most of the time “privacy rights” are used to prevent the discovery of information that is critical to a case. I have never seen any individual harmed by the discovery of information in any case I have been on, and I have been practicing law for almost ten years.
That does not mean my personal experience should be the barometer for California’s public policy. I’m just conveying my experience.
On the other hand, I have seen discovery used as a means to drive up costs and harass people.
The methods of discovery in California are as follows:
- Request for Production of Documents
- Form Interrogatories
- Special Interrogatories
- Request for Admissions
All of these are useful tools for one who needs information, but also useful for unethical attorneys hoping to place pressure on another party or drive up costs and make the case too expensive to move forward on. I am sorry to report there are no small number of attorneys who use discovery for this purpose. While the courts have the power to handle discovery disputes, it is often difficult to determine who is the bad actor.