Discovery (expedited for injunctive purposes)

Discovery is the phase of the litigation before trial during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. Generally, discovery devices include depositions, subpoenas to third parties, interrogatories, requests for admissions, document production requests and requests for inspection (see below). Diligence and aggressive during discovery often times mean the difference between success and failure in the litigation.

In non-competition litigation, the parties may engage in what is known as “expedited discovery.” In most instances, the plaintiff/employer maintains concerns about the misappropriation of its trade secrets and customer goodwill. Often times such concerns will dictate that our attorneys seek a preliminary injunction and will request that such a hearing be set as soon as practical. While normal litigation can often take years, preliminary injunction hearings can be set in a few weeks to a few months. For practical purposes, this means that your lawyers will be very busy during this initial phase – in some ways, it is akin to compressing two years of litigation into a two month timeframe. Of course, that will lead to increased legal fees at the outset of the case, and may require extensive time and resources from you and others in your company.

Certain common discovery devices that may be employed include:

• Deposition - a proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.
• Interrogatories - written questions sent by one party to the other party for the latter to answer in writing under oath.
• Request for admission - a request to a party that he admit certain facts. One party sends the other a request for admission so that basic issues the parties agree upon can be resolved and not have to be proven if the parties go to trial.
• Request for production of documents - a request to a party to hand over certain defined documents. In family law cases, parties often request from each other bank statements, pay stubs and other documents showing earnings, assets and debts.
• Subpoena - an order telling a witness to appear in court or at a deposition. A subpoena is issued by the court, and if the witness fails to comply, s/he can be held in contempt of court. A subpoena duces tecum requires the witness to bring specified documents with them to the deposition.

Back to the plan