In this article, we’ll discuss the Written Discovery phase of civil litigation in Iowa.
We’ll answer questions like, “how does written discovery fit into the overall civil lawsuit process?”, “what does written discovery entail?”, and “how long does written discovery take?”
Civil cases normally fall into one of three categories: contract law (contracts and agreements between persons or businesses), family law (divorce, child custody, alimony), and tort law (property damage claims, personal injury, liability). Generally, the process of civil litigation is the same for each category, with some slight differences for family and small claims. Also, in 2015 Iowa made some dramatic changes to portions of its civil litigation process. One being its Fast Track litigation process and the other being changes in the general discovery rules for civil cases.
It’s easy to be confused by the entire process of civil litigation. Without some prior experience or general knowledge, it may seem like a lawsuit is filed and you quickly end up in court, battling it out with the other party. But in reality, only around 0.6% of civil litigation cases actually make it to the trial phase. Not necessarily because there is no case to be had, although that is one reason, but rather the case is resolved without the need for a trial. How does that work you ask? And if that’s the case, then what is my attorney doing? Well, a significant portion of pre-trial work is the discovery process.
If you’ve watched even a handful of movies surrounding a court case, legal proceedings, or about law in general you probably remember scenes of stressed-out men and women in suits pouring over stacks of paper into the early morning hours. It almost seems like they are doing the work of a detective or private investigator. Well, to some degree they are. It is your attorney’s job to research the facts surrounding your case. The bulk of the discovery process is to figure out what happened, what lead to the lawsuit being filed, information about the opposing party, and all the other pertinent facts surrounding the case so that later a convincing narrative that supports your side can be constructed. Often, the case will settle during this phase because one side or the other come across facts that signal to the attorney that the case will likely lose at trial.
A civil action is initiated when the filing party files his or her complaint in the appropriate court. In most situations, the filing party is referred to as the plaintiff and the opposing party the defendant. The claim, often called the petition, explains who is involved in the suit, the legal claims, and any remedies sought by the plaintiff. The petition has to be served to the opposing party. Hence the, “You’ve been served,” line that shows up in TV and movies. After this the opposing party can file his or her answer, admitting or denying liability. Barring any pre-trial motions, such as a motion to dismiss, following the initiation of the lawsuit the discovery process begins. Note, a motion to dismiss can still be put forth during the discovery process.
In Iowa, the discovery phase can’t commence until both parties meet for a “discovery planning meeting.” The law requires that certain information under the initial disclosure be collected for the case immediately after the discovery conference, prior to the beginning of the discovery process. The information under the initial disclosure includes, but is not limited too:
The discovery planning conference must take place no later than 21 days after the serving of the lawsuit. At the discovery planning meeting both parties and their attorneys must discuss the nature and basis for their complaints, and any possibility of quickly resolving the case; make or arrange for disclosures; cover any potential problems when preserving discoverable information, and make a plan for the proceeding discovery process. The point of this meeting is to 1) see if the case can be resolved immediately, 2) be on the same page as far as what will be asked for, and 3) develop a plan so that everyone understands what will transpire during the discovery process and to hopefully get it done as quickly as possible.
Finally, we get to the written discovery portion! Written discovery, as the name implies, deals with the document portion of discovery. It can be broken down into four categories of documents:
It’s normal for either side to issue objections against any number of initial requests for interrogatories or production of documents. The opposing party attempts to support these objections under one of the following basis:
If the objecting party withholds the information that it believes is not discoverable or does not respond within a timely manner, the requesting party can write a letter to the objecting party detailing why it believes the objecting party is unlawfully withholding information. This letter details the withholding party’s responses, argues why the withholding party’s responses are deficient, and asks that the withholding party fulfill the discovery request within a specific period of time. With the introduction of changes to the civil litigation process in Iowa and its focus on fast track litigation, the law is even more focused on the two parties working out their discovery objections outside of court and in a timely manner. If the two parties are unable to come to an agreement on certain objections then a Motion to Compel can be put forth.
A Motion to Compel asks the judge to order the opposing party to answer the discovery inquiry more fully or appropriately. If the judge grants the motion the opposing party may be required to pay the attorney fees associated with the delay due to the objections. If the opposing party continues to refuse an appropriate answer then they will be held in contempt.
Depending on the case, written discovery can be a timely process, lasting anywhere from a couple of months to over a year. As more and more information comes to light during the discovery process it is not uncommon for either party to issue a second or third set of interrogatories and requests. In Iowa, plaintiffs have the option to choose an expedited civil action lawsuit. This process requires the case to be tried in one year or less, meaning the discovery process must move at a quicker pace, and the award is limited to $75,000. This process also limits some portions of written discovery and pretrial procedures and allows a trial to move forward with a jury of six persons and limits an attorney’s time to six hours for certain portions of the trial, including openings, direct and cross-examination and closings. Other new rules also obtain to the Fast Track litigation process in Iowa.
Ideally, both sides get as much complete and satisfactory information from the opposing party before scheduling depositions. The purpose of all this information in the discovery process is twofold: first, depositions are costly. The discovery process allows your attorney to narrow his or her focus in order to lessen your overall cost and create a more consistent coherent argument. Second, competent written discovery prevents deponents from giving incomplete or nonessential answers during deposition. The discovery phase can feel long and frustrating to the plaintiff and/or defendant, but the thorough discovery is what wins cases whether they go to trial, settle pre-trial, or are resolved under some motion prior to trial.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: