Wednesday, July 22, 2015

What is "Discovery"?

After the initial stages of filing a lawsuit, the pleading stage, is complete, the parties will have an opportunity to obtain information to each other regarding factual and legal basis for their respective claims and defenses.  This is known as the discovery phase of litigation.  

What is the discovery phase?

During the discovery phase, each party has an opportunity to use the various discovery “tools” to obtain information regarding the other party’s claims or defenses.  The most common discovery tools are:

“Rule 26” Disclosures

In federal court, the parties are required to exchange “Rule 26” disclosures with one another.  These disclosures require that each party provide basic information on what discoverable information it possesses.  For example, “Rule 26” disclosures require that a party identify individuals that may have knowledge regarding the facts of a case and requires parties to identify relevant documents in their possession.  The purpose of the “Rule 26” disclosures is to streamline the discovery process for all parties involved.

There is no state court equivalent for “Rule 26” disclosures.  Instead, parties typically utilize other discovery tools to obtain the same information. 

Requests for Production of Documents and Things

A request for production of documents and things is precisely what the name implies.  Such a request is made in writing to an opposing party which must respond in the time period provided under the rules.  Requests for production now typically include request for electronic records, such as e-mails, text messages and information from social media.


Interrogatories are written questions which are directed from one party to another.  The receiving party is required to respond with written answers within the period of time provided under the rules. Typically, counsel is heavily involved in providing the responses to interrogatories and rarely yields “smoking gun” information. 


Depositions are the center piece of the discovery process and involve a real time interchange between individuals and counsel.  During a deposition, counsel asks a series of questions and the deponent provides a series of answers.

Depositions typically takes place in a law firm conference room but are sometimes held at a court house or other location.  The interchange between counsel and deponent is recorded verbatim by a stenographer who produces a written transcript that can be used at trial or in the context of a motion.

Because of the preparation time required to conduct a deposition or defend a client who is being deposed, a deposition is typically the most expensive discovery tool available.  Moreover, stenographers charge by the page and their rates range from four to ten dollars per page depending on the speed in which the transcript is needed.

Notwithstanding the costs, a deposition is often the most effective discovery tool as it requires the deponent to provide information without the softening effect of counsel.  The deposition also allows a preview of how a witness may behave at trial.


A subpoena is a device used to compel information from individuals or entities that are not parties to litigation.  A subpoena is used in combination with some other discovery tool.  For example, you may send a subpoena to a third party in order to compel them to produce documents or appear for a deposition.

How long does the discovery phase last?

The length of the discovery phase depends primarily on the jurisdiction and venue where the case is being litigated.  The discovery phase in federal court is typically much shorter than in state court.  The discovery phase in federal court is typically less than one year. 

The discovery phase in state court can be extremely long as judges in state court do not set deadlines for propounding discovery.   Many parties use delays in discovery as a tactic to exhaust the opposing party.

Although state courts typically have long discovery phases, the Court of common pleas in Philadelphia has a sophisticated case management system that significantly reduces that time. The discovery phase of the majority of cases in Philadelphia is completed in less than eighteen months.

What will I need to disclose in discovery?

Although the specific documents and information that you will need to produce depend heavily on the particular circumstances of your case, the scope of discovery is generally quite broad.  A party may obtain discovery regarding any matter, that it not privileged, which is relevant to the subject matter in the pending litigation.  Moreover, even irrelevant information is subject to disclosure if the information appears reasonably calculated to lead to the discovery of “appears reasonably calculated to lead to the discovery of [admissible] evidence.”

Emergency Relief and Preliminary Injunctions

Some matters may require emergency action by a Court to prevent immediate harm. This is generally sought in the form of an injunction.   

What is a preliminary injunction?

A preliminary injunction is a court order to do or not do something issued at the outset of litigation to prevent irreparable harm.  It can take a number of forms and courts have broad discretion as to their scope.  A party that violates a preliminary injunction may be subject to contempt of court and subject to the criminal and civil penalties that go along with it.

How do we obtain a preliminary injunction?

A request for a preliminary injunction will only be granted to prevent immediate and irreparable harm to a party.  It is available when a party would be seriously harmed by waiting for the conclusion of litigation.  For example, a party seeking to stop a company from dumping toxic waste in a river, would be likely to receive a preliminary injunction ordering the company to stop discharging waste during the pendency of litigation.   If harm can be reversed by paying money, a preliminary injunction is not appropriate. 

Although the party seeking an injunction must show a probability of success that they will prevail on their claims, the purpose of a preliminary injunction is not to determine who will ultimately win.  It is meant to maintain the status quo during the pendency of litigation.

The party seeing an injunction is sometimes required to deposit money into the court or post a bond to cover any damage that may arise from the wrongful imposition of the injunction.

When can we get a preliminary injunction?

As the name suggests, a preliminary injunction can be obtained early in the litigation.  Depending upon the nature of the injunction, a motion for an injunction may be made simultaneously with the filing of the claim and the court will often hold a hearing within several days.  In some rare circumstances, a court may grant a preliminary injunction before the opposing party has any opportunity to respond.

Motions to Dismiss

During the course of litigation, you may have an opportunity to file a motion to dismiss.  You may also be forced to respond to such a motion from an opposing party.  

What is a motion to dismiss?

Preliminary objections and Rule 12-b motions ask the court to assume that everything in a pleading is true and that the party filing the pleading, nevertheless, has no legal basis for a claim.  Preliminary objections and a 12-b motions are very similar.  Preliminary objections are filed in Pennsylvania courts, whereas, “12b” motions are a feature of federal court procedure.   The term “Motion to Dismiss” is an informal way of describing either preliminary objections or a “12b” motion.

For example, if a plaintiff sued a defendant for telling plaintiff that he did not like the color of her shirt; the defendant would likely succeed on a preliminary objection or a “12b” motion.  Even if the court were to believe everything the plaintiff said—that defendant did not like the color of plaintiff’s shirt—there is no law that the defendant violated and plaintiff cannot recover.

Similarly, preliminary objections or a “12b” motion can be used to attack technical deficiencies in a pleading.   For example, if a plaintiff sues the defendant in an inappropriate venue, the defendant can challenge that venue using such a motion.

When do you file a motion to dismiss?

Preliminary objections or “12b” motions must be filed before answering a pleading.  In Pennsylvania courts, this means the preliminary objections must be filed within thirty days of service of pleading.  In federal court, a “12b” motion must be filed within 21 days of a pleading.  Objections that are not filed in time are waived.

Why would you file a motion to dismiss?

There are a number of reasons to file preliminary objections or “12b” motions.  Parties often file preliminary objections or “12b” motion to challenge technical deficiencies in a pleading, for example, venue or failure to attach exhibits.

Preliminary objections and “12b” motions can also be used to force an opposing party to clarify the basis of its claim.   Attorneys sometimes, whether as a tactical device or because of incompetence, inject or allow ambiguity and vagueness in their pleadings.  An opposing party may not wish to answer such a pleading as it may require them to disclose more information than they would otherwise or because it allows the filing party latitude to change or modify their claims later in the litigation.  

Preliminary objections and “12b” motions are used to dismiss frivolous claims.  Such motions can allow a party to avoid the need to answer frivolous allegations or conduct discovery. 

Preliminary objections and “12b” motions can be used to challenge novel legal theories.  It is not uncommon that a plaintiff seeks to recover from a defendant using a legal theory that has not been approved by an appellate court.  Preliminary objections and “12b” motions challenge the legal adequacy of such novel theories early in the litigation, thereby allowing the court to either approve a legal theory or reject it and allow the disappointed party to take an appeal. 

There are also dishonest reasons for filing a motion to dismiss.  Some attorneys and firms have a reputation for filing preliminary objections or “12b” motions as a tactical device aimed at delaying a proceeding, increasing their own billable hours and forcing their opponents to incur attorney’s fees to respond.  This practice is both unethical and a violation of the rules but it happens with some frequency, particularly in Pennsylvania courts. 

What happens if we win or lose a motion to dismiss?

Since preliminary objections and “12b” motions test the sufficiency of a pleading, a court is generally required to give a party the opportunity to correct these pleadings.  Thus, if preliminary objections are filed against you and you do not prevail, the court will generally allow an opportunity to amend the pleading.  A party can file an additional motion to dismiss to amended pleadings.

There may be instances where a party cannot “correct” their pleading.  For example, if the plaintiff is advancing a novel theory of law there is no way to add additional facts to a complaint that would validate that theory.  In such instance, the court’s order sustaining preliminary objections or granting a “12b” motion has the effect of dismissing one or more of a party’s claims.  If the order disposes of all claims in the litigation, the disappointed party is put out of court and has a right to appeal. 

If a court overrules preliminary objections or denies a “12b” motion, the party that filed it is required to answer to the pleading they objected to.  For example, if a party files a motion to dismiss to a complaint and the motion is denied, the party will be required to answer the complaint.

Motions for Summary Judgment

During the course of litigation, you may have the opportunity to file a motion for summary judgment.  You may also be forced to respond to a motion for summary judgment filed by another party.   

What is a motion for summary judgment?

To understand a motion for summary judgment, you must first understand the purpose of a trial.  A trial is meant to resolve factual disputes.  During a trial, the fact finder (either a jury or a judge sitting as a fact finder) has an opportunity to review testimony and evidence and weigh its credibility to decipher the truth.  For example, in a case where driver A strikes driver B in an intersection, whether the traffic light was green or red when driver A entered the intersection is factual issue.  If there is a dispute as to whether the light was red or green, a trial is required to resolve that dispute.  At the trial, driver A might testify that he believed that the light was green when he entered the intersection whereas driver B may testify that the light was red.  The fact finder would be required to evaluate the credibility of each witness and make a factual determination as to who is telling the truth. 

If there are no factual disputes in a particular matter, there is no reason to have a trial.  The purpose of a motion for summary judgment is to avoid unnecessary trials in matters where there are no factual disputes.  A motion for summary judgment presents evidence that was gathered in discovery to show that no factual disputes exist and asks the court to apply the law to the undisputed facts. 
Any party may file a motion for summary judgment. 

When is a motion for summary judgment filed?

Under the rules, motions for summary judgment can be filed at any time after the pleadings stage.  As a practical matter however, a motion for summary judgment is typically filed after the discovery phase has concluded and before the trial begins.  Many courts, for example the Court of Common Pleas in Philadelphia and federal court, set strict deadlines in which to file a motion for summary judgment.

What is involved in preparing or responding for a motion for summary judgment?

A motion for summary judgment is generally one of the most elaborate and time consuming motions to prepare.  Each fact set forth in the motion must be supported by evidence obtained during the discovery process.  Each item of discovery cited in the motion must be attached as an exhibit.

A motion for summary judgment or a response to one also contains an argument section that asks the judge to apply the law to the facts in a particular way.  Depending on the complexity or the novelty of a particular claim, this section is often quite detailed.  

What happens if I win or lose a motion for summary judgment?

If plaintiff files a motion for summary judgment and succeeds, the court will issue a judgment against the defendant and there will be no need to proceed to trial.  If a plaintiff files and loses, the matter will proceed to trial.

If defendant files a motion for summary judgment and succeeds, plaintiff’s claims are dismissed and plaintiff is put out of court.  If the same defendant loses, the case will proceed to trial.

These outcomes are sometimes more complicated when a party moves for partial summary judgment.   In a motion for partial summary judgment a party asks the court to grant summary judgment only on a particular issue or claim.  Even if the court grants a motion for partial summary judgment, a matter may still proceed to trial in order to resolve factual disputes associated with other claims.