Discovery is on the news currently because lawyers for Fox News apparently violated discovery rules and the judge in the case is not happy about it.
- Judge Imposes Sanction on Fox for Withholding Evidence in Defamation Case.
The judge overseeing Dominion Voting Systems’ lawsuit against Fox News said on Wednesday that he was imposing a sanction on the network and would very likely start an investigation into whether Fox’s legal team had deliberately withheld evidence, scolding the lawyers for not being “straightforward” with him.
The rebuke came after lawyers for Dominion, which is suing for defamation, revealed a number of instances in which Fox’s lawyers had not turned over evidence in a timely manner. That evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani, which Dominion said had been turned over only a week ago.
In imposing the sanction on Fox, Judge Eric M. Davis of the Delaware Superior Court ruled that if Dominion had to do additional depositions, or redo any, then Fox would have to “do everything they can to make the person available, and it will be at a cost to Fox.”
He also said he would very likely appoint a special master — an outside lawyer — to investigate Fox’s handling of discovery of documents and the question of whether Fox had inappropriately withheld details about the scope of Rupert Murdoch’s role. Since Dominion filed its suit in early 2021, Fox had argued that Mr. Murdoch and Fox Corporation, the parent company, should not be part of the case because Mr. Murdoch, the chair, and other senior executives had nothing to do with running Fox News. But in the past few days, Fox disclosed to Dominion that Mr. Murdoch was a corporate officer at Fox News.
So what is it?
- From LII: Discovery.
In civil actions, the discovery process refers to what parties use during pre-trial to gather information in preparation for trial.
The Federal Rules of Civil Procedure have very liberal discovery provisions. Before the rules were adopted in 1938, plaintiffs essentially had to prove their case before filing suit. See notice pleading. The Federal Rules changed that such that under the rules' liberal discovery approach, plaintiffs who strongly suspect that they were wronged can file a lawsuit, even if they do not have solid evidence. Additionally, during discovery, they can force the defendant to give them evidence that they can use to build their case.
Discovery under the Federal Rules is very broad. According to Rule 26(b)(1), "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." The federal rules also provide several tools that can be used to get information from other parties, including interrogatories, depositions, and requests for admission. A party may also compel other parties to give them access to documents, real property, or other things for review or testing. See Rules 26-37.
Complying with discovery rules is particularly difficult and expensive for institutional defendants because it takes time and incurs legal fees. This difficulty is somewhat mitigated by rules allowing defendants to simply grant plaintiffs access to their records, effectively telling them "if you want it, find it for yourself." See Rule 33. This does not, however, reduce the legal expenses involved in reviewing and responding to discovery requests. Depositions are particularly expensive.
In most states, an attorney’s work product is not obtainable through disclosure. This is an unqualified immunity regardless of subject matter. “Material prepared for litigation” is not absolutely protected, however. That generally means that work prepared by non-attorneys for the litigation would be discoverable. For example, in People v. Kozlowski, 11 N.Y.3d 223 (2008), notes from director interviews taken during a law firm’s internal investigation were not protected from a subpoena filed by the defendants.
