Diary of a Copyright Infringement Lawsuit – 9 (Written Discovery)

The time between filing the lawsuit and the trial is used to prepare for trial. To prepare a case for trial, the litigants may conduct “discovery.” Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. The goal is to learn everything that you can about your opponent’s case, even if it may not be admissible at the trial, as long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Some of the discovery is obtained via written methods, which will be addressed here. Discovery via other means will be addressed in a future blog entry.

As previously discussed, federal courts require the parties to provide “Initial Disclosures” to each other at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order. After that, each party decides what discovery tools it will use.

Written discovery may be conducted through:

  • Rule 31. Depositions by Written Questions – This seldom-used discovery tool is like an oral deposition except the questions and responses are in writing. While it’s a cheaper method to obtain information from someone who isn’t a party to the case, your attorney can’t follow up on questions and the respondent may take time to carefully craft a response. But if you need information that is fairly straight-forward, this can be a useful method.
  • Rule 33. Interrogatories to Parties – This discovery method is to ask other parties to answer questions in writing. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Interrogatories are a great way to obtain preliminary information from another party.
  • Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes – This discovery tool allows a party to ask other parties or anyone else to produce and permit the requesting party to inspect, copy, test, or sample any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form or any designated tangible things.  The kinds of documents requested in a copyright infringement lawsuit are copies of the infringements, correspondence, and business records.
  • Rule 36. Requests for Admission – While technically not a discovery method, this tool is used to ask the other party to admit to certain things so to eliminate issues that are not in dispute, so that further discovery can be directed to only those matters need to be resolved at trial. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. For example, a photographer plaintiff may ask the defendant to admit that it published a photograph in a book. The remaining issue for trial may then be whether the use was a fair use.

Objections – Those who are responding may object to any discovery requests on certain grounds, such as the request is vague, argumentative, ambiguous, overbroad, burdensome, oppressive, or not likely to lead to admissible evidence. The grounds for objecting to an interrogatory must be stated with specificity. If a respondent asserts and objections, the parties must try to resolve the dispute whether the discovery request is appropriate. If they can’t resolve their differences, the party requesting the discovery can ask the court for assistance through a motion to compel the discovery.

Effective use of written discovery tools allows the parties to determine the other side’s case so that each can prepare more effectively for trial. In the process, it may encourage the parties to settle when they uncover the pros and cons of their case.

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