When a lawyer thinks about how to approach civil litigation, the discovery process often hangs over the whole case. Discovery is the court-ordered requirement that both sides must disclose all relevant evidence the other one demands. This is often where the meat of the evidence in litigation comes from.
How big of a deal is discovery in civil law, though? Here's what discovery is and why it's important.
The Purpose of Discovery
Modern American civil law is not like the movies. Both sides have a right to know what they're walking into, and discovery is one of the ways the law safeguards that right.
An Example
Suppose one company is suing another over non-delivery of a shipment. The plaintiff believes there is evidence in the defendant's emails that shows the defendant knew about the delivery problem and didn't do enough to address it. Obviously, the plaintiff's attorneys will want to see the contents of those emails so they can present them in court.
Presuming the civil litigation goes on long enough, the judge will order discovery. Each side will have to tell the court and the other side specifically what evidence they're looking for. In this example, the plaintiff's attorney would note who sent the emails, when the emails went out, and what the plaintiff expects to find if they can read them. The defense then has a duty to comply in good faith with the request by providing copies of all emails that fit the description.
Sanctions and Inferences
What happens if the defense can't or won't produce the requested discovery materials? If the failure is fairly minor, the judge might fine the defense. Likewise, if the behavior is persistent and defiant, they could find the defendant in contempt of court and order them to sit in jail until they comply.
There are scenarios where compliance may be impossible. In those circumstances, the judge could reach an adverse inference. This means if there is a trial, the court will instruct the jury to assume the absolute worst about the missing evidence. In the case of missing emails, the jurors would have to assume the emails said exactly what the plaintiff's discovery request indicated.
Entering Evidence Into the Record
Once discovery is concluded, the two sides have to enter the evidence into the record before trial. If you fail to enter evidence, you won't be able to use it in court. However, you can enter evidence and then not use it. Contact an attorney for more information regarding civil law.
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