January 1, 1900

by Anne L. H. Studholme

Bill Gates learned the secret of "discovery" when he was humiliated in the Microsoft antitrust lawsuit by the dissection of his "confidential" e-mail. In a lawsuit, almost anything either party said or did previously which is related to the subject matter may have to be disclosed to the opponent and may well become public record. The pre-trial process of "discovery" requires both plaintiffs and defendants to reveal documents and communications which may have been made or created with the expectation that they were private.

Therefore, as a matter of general practice, one should understand:

"Discovery" requires the production of documents and records, testimony about oral communications and testimony about documents which no longer survive;

Any communication, whether spoken or in writing, may eventually meet the light of day. All communications relevant in any way to a lawsuit are presumed to be discoverable, even if the material is not admissible into evidence at trial;

Privileges against disclosure of communications available under New Jersey law, such as the attorney-client privilege, may be weakened or waived by carelessness.

This article will discuss the general breadth of discovery and some types of questions which may be asked. It also will provide an overview of various privileges. Part II of the series will examine more fully certain privileges against disclosure.

What Is "Discovery"?

Once a civil lawsuit is filed, the parties may request production from each other of information regarding the case, including facts known, relevant documents, lists of people with knowledge and sworn testimony. Litigants may also subpoena documents and testimony from people not parties to the suit. This process, called "discovery", is intended to enable the parties to learn facts which may help their own cases, to find out what facts and materials that the other side will rely upon and to prevent surprises at trial.

The New Jersey Court Rules permit discovery of all relevant information which is not subject to a privilege against disclosure, and relevant information for discovery purposes is defined as anything which will be admissible as evidence at trial or which may lead to admissible evidence. Thus, the courts treat discovery very liberally and generally leaning in favor of disclosure if possible.

Evidence obtained through discovery is often crucial to the resolution or disposition of a case before trial. Because discovery puts all cards on the table, a case will often settle once discovery is complete. In addition, one or both parties may file a motion for "summary judgment", which is based upon such discovery to bring about a resolution of the matter. A summary judgment motion allows the judge to determine which party is entitled to a judgment as a matter of law without the need for a trial when material facts are not disputed.

What Types of Documents Must Be Produced in Discovery?

Virtually anything tangible which is not subject to a privilege (and the great majority of things are not) must be produced. This includes letters, reports, and writings of all kinds, e-mails, phone logs, computer records, photographs, drawings and plans, tape recordings (even those made for the sole use of the person dictating), voice-mails if they are saved or retrievable, handwritten notes, diaries, journals, computer hardware from which data, even deleted data, can be recovered, and any other items which can lead to admissible evidence. Failure to reveal discoverable information or materials despite a request for discovery can lead to sanctions against the offending party, ranging from the requirement to pay the other side's costs to dismissal or suppression of a party's claims or defenses.

If a party claims that a particular item is privileged, that party must provide the reason for the privilege and enough information about the document - who made it, for whom, when, for what purpose, its current location - so that the opposing party and the court can determine if it actually is protected from discovery. If anything which would otherwise need to be produced has been destroyed, the party who had it last must provide a detailed description of the item and the reason for its destruction or unavailability. Destroying items because they might be relevant to an anticipated lawsuit may be obstruction of justice and can give rise to additional damage claims.

What Types Of Questions Are Asked In Discovery?

During discovery, parties may propound interrogatories (or written questions) and request production of documents by other parties. They also may depose opposing parties, their agents, and potential witnesses - that is, interrogate them under oath before a certified court reporter. Interrogatories can be used to ask for facts, dates, lists, amounts and descriptions of events, legal or contractual relationships, and conversations, as well as identification of the individuals who have such knowledge and who provide the answers. They also are used to obtain identification of opposing expert witnesses and copies of their reports. Depositions can be used to delve further into the facts that the witnesses know, materials the witnesses relied upon or are familiar with, and the identity of other potential witnesses.

Questions asked in discovery generally must be answered unless they are objectionable for technical reasons or they seek privileged information. Most communications, for instance with one's business partners, are not privileged.

What Privileges Are Available In New Jersey?

Privileges are disfavored. The law tries to balance the need for certain types of confidentiality against the need to find out the truth. However, the search for the truth is considered the more important goal. Therefore, privileges are construed narrowly, and courts are reluctant to expand existing privileges or adopt new ones. For example, the New Jersey Supreme Court in Payton v. New Jersey Turnpike Authority has refused to adopt the "privilege of self-critical examination," regarding internal evaluations of businesses and organizations. Therefore, such evaluations most likely cannot be kept confidential once a lawsuit regarding that issue has been filed.

Privileges recognized in New Jersey include the attorney-client privilege, the psychologist-patient privilege (which also covers communications made among patients in joint therapy), the physician-patient privilege, the inter-spousal or marital privilege, the marriage counselor-client privilege, the victim counselor-client privilege, and the cleric-penitent privilege. These privileges, except under limited circumstances, protect the confidentiality of communications between certain people. Another privilege is the trade secret privilege, which protects particular types of business information from disclosure.

What Actions Can Waive Or Weaken A Privilege?

Revealing any information from a privileged communication may eliminate the privilege, thereby requiring disclosure of the entire communication. For instance, disclosing some material which otherwise would be protected by the attorney-client privilege may constitute a waiver of the privilege for all related information.

The privileges to which a business is most likely to resort are the attorney-client privilege and the trade secret privilege. The attorney-client privilege protects communications between a company's employee and the company's attorney or between the employee and his or her own attorney. However, certain types of statements to company attorneys are not so protected. Further, an employee might be deemed to not be represented by corporate counsel.

Trade secrets are privileged because disclosure of them can harm the business. However, not all business communications are trade secrets. Companies therefore must be aware of the consequences which result from the classification of communications and materials and must take steps to preserve the confidentiality of those communications which are privileged. Part II of this series will cover these topics in more detail.

In general, knowledgeable legal counsel is the best guide on these issues. Any questions regarding the protection of sensitive communications should be referred to counsel. Good advice before a lawsuit is initiated can help prevent or minimize unpleasant surprises.

Anne L. H. Studholme is an associate of the firm and a member of the Land Use Division. She concentrates her practice in diverse land use matters.