The Wild World of Discovery…What Can’t They See?

No matter how hard TV shows try, they are just not the reality they portray. Prime example is law related shows. First you have the crime or the incident and then you are in trial, the most exciting part. But what happens in the middle can be the deciding factor whether your case survives, settles, or gets dismissed. This is called discovery.

However,  just because the other side asks for something during discovery doesn’t mean you have to rent a u-haul and deliver everything to them. There are certain documents, communications and other information that falls into different categories of privilege. For example, any and all communications with your attorney is protected by the attorney-client privilege. This includes letters, emails and all matters discussed over the phone.

I spent almost 10 years doing insurance subrogation work for various insurance companies and  many defense attorneys’ tried to get a hold of the insurance companies’ internal notes, or the documents that reflected how they managed the claim and made internal decisions. These communications, however, are protected by the work-product privilege, or more specifically defined, information produced in anticipation of litigation.

A lesser known protection that is available to many defendants is the protection from releasing personal, financial information. If you are being sued for money damages, the plaintiff would sure like to know if you are collectible from the outset. But what is interesting is that your financial situation has no bearing on whether you caused the automobile accident, whether you signed for the credit card contract, or whether you did or did not make the improvements to the office building as agreed upon. I have seen discovery requests in ordinary tort and contact suits asking for bank statements, tax returns, pay stubs, etc. This is over-reaching by the other party and not material to any issues of liability or damages. This information is discoverable after judgment, but generally speaking, not before.

Some discovery requests ask for all documents, or all statements, ever, between parties or involving third parties. These requests are generally over-broad or unduly burdensome and should be narrowed to what is specific to the time period that is being contested or argued over. This can be accomplished by a timely objection and a hearing for the judge to determine what should and should not be produced.

In the discovery phase of litigation, certain information is protected from being discovered. If you are involved in litigation and have questions on what you can produce and what may be protected from discovery, always consult a lawyer.