This article, written by attorney Cassandra Rodgers, was originally published by the NH Union Leader and can be found here.
Discovery is the foundation of any litigation. In concept, discovery is simple — it is the process of unearthing facts and developing evidence to be presented to a fact finder, whether that be a judge or jury, to aid in a final determination on an action’s merits.
However, in practice, discovery is often a time-consuming and expensive process — one in which you or your business may become a reluctant participant as either a defendant or subpoenaed third party.
This article addresses some practical considerations for those who find themselves subject to the discovery process.
Methods of discovery. Discovery may be conducted in a plethora of avenues. Written discovery regularly entails providing composed responses to written requests. In contrast, paper discovery involves production of responsive documents or electronically stored information, either by providing physical copies or electronic copies or otherwise making documents available for inspection. Finally, oral discovery is typically pursued through depositions, during which a witness responds to a series of questions under oath. Each method of discovery provides strategic advantages and disadvantages to the party pursuing discovery, while imposing varying burdens upon the party subject to it. Should any of these mechanisms of discovery be directed toward you or your business, discovery counsel may be able to aid in alleviating the associated burden.
Bases to avoid burdensome discovery. Discovery is not an automatic or unavoidable process. Rather, importantly, in considering a response to any discovery mechanism, a party should consider its bases for objection. Objections primarily fall into three categories, including objections to (1) a procedural flaw in the service or preparation of the mechanism for discovery; (2) an asserted privilege; or (3) a quality of the requested discovery itself. Accordingly, it is important to scrutinize each discovery request in not only its form and procedure, but also as to its content to determine the scope of your obligation to respond.
Determining your universe of documents. A party subject to non-objectionable requests must fulfill its own set of obligations. For example, a party subject to requests for documents under New Hampshire law must produce or permit inspection of those documents within its “possession, custody or control.” However, determining what exactly is within your or your business’s “possession, custody or control” has become an increasingly challenging endeavor. Not only has documentation shifted away from physical paper files to electronic data, but the volume of documentation is ever increasing with developing technologies. Accordingly, when adopting emerging technology, such as generative AI, smart home devices, automatic phone-call recording or a cloud-based storage system, it is best practice to first consider the records resulting from the technology’s use. While these services may offer an element of convenience, they will also likely create a vast discoverable record of contemporaneous thoughts, intentions or actions.
In short, while the discovery process is commonplace in litigation, it can become a significant encumbrance. Educating yourself and your business about the discovery process will better position you or your business in the event that you become subject to it.