Discovery

• Author: Rebecca A. Taylor
• Pages: 229-247

Discovery

Chapter 20

229

One purpose of discovery is to test the strength and weaknesses of

opponents’ positions, and sometimes reveal additional claims and

defenses that a party did not have at the beginning of its lawsuit.

Another function of discovery is “to remove surprise from trial

preparation so the parties obtain evidence necessary to evaluate

and resolve their dispute.”1 The discovery process may even facili-

tate settlement, as discovery helps to establish where each party

stands in terms of its potential success or failure in the case.2

The discovery methods permitted by the Federal Rules of Civil

Procedure are depositions, interrogatories, production of documents

or things (including requests to enter lands, sample products, etc.),

physical and mental examinations, and requests for admission. A

party is permitted to use cumulative methods of discovery in con-

junction with each other and usually in any order, rather than hav-

ing to choose between methods.3 A party can be required to produce

documents or information even if they are available from some other

source, which is useful in the foreclosure arena, as many docu-

1. Ragge v. MCA/Universal, 165 F.R.D. 601, 603 (C.D. Cal. 1995).

2. See Greyhound Corp. v. Super. Court of Merced County, 56 Cal. 2d

355, 377 (1961).

3. See Pulsecard, Inc. v. Discover Card Servs., 168 F.R.D. 295, 305 (D.

Kan. 1996).

230 CHAPTER 20

ments may be available in the public record but are difficult to find.4

This places the burden on the banks to locate the documents in-

stead of the homeowner, which is usually fairer, as the bank has

more resources to locate documents and usually has most of the

documents relevant to the foreclosure in its possession anyway.

Some jurisdictions require the parties to lay certain cards on the

table. Cases governed by the Federal Rules of Civil Procedure re-

quire the parties to disclose certain matters without awaiting a dis-

covery request, which include the names of potential witnesses,

copies of documents supportive of each party’s claims or defenses

(or a description of their contents and location), computations of

the parties’ damages, and copies of any insurance agreements that

may be used to satisfy a judgment.5 The Federal Rules, as well as

some jurisdictions, also require a party to supplement discovery

disclosures if he learns that his initial response is now incomplete

or incorrect.6 When no minimum discovery or supplementation of

responses is required, it is up to the parties to craft the methods to

best ferret out the information they need from the other side, which

more often than not the other side does not want to reveal.

A great deal of time can be wasted in discovery; but on the

other hand, time wisely spent in this stage of the litigation can make

all the difference for a homeowner defending against foreclosure.

Courts often have a great deal of respect for litigants who are able

to negotiate the discovery process without court intervention. Courts

often do not like to be called upon to resolve discovery disputes, as

this is often a sign to the court of a lack of professionalism on one

or both sides, especially if the discovery requests are reasonable.

One thing to keep in mind is that even if information is produced to

the other side in discovery, it cannot necessarily be introduced as

evidence in support of summary judgment or trial, as parties may

keep certain matters out through motions in limine.

In the foreclosure arena, the bank is usually not interested in

propounding discovery on the defendants. For one thing, it is a

volume business for the bank and its foreclosure counsel, and the

4. See Wright v. Patrolmen’s Benevolent Ass’n, 72 F.R.D. 161, 164 (S.D.N.Y.

1976).

5. See FLA. R. CIV. P. 26(a)(1).

6. See FED. R. CIV. P. 26(e).