8. What is the “scope of discovery” in a civil lawsuit?
A party is permitted to seek evidence that is relevant to the dispute. Basically, the evidence requested through discovery must have a tendency to lead to evidence that may be relevant and admissible at trial. This standard is construed very broadly. If one party fails to produce requested discovery, the other party generally files a motion with the court to mandate its production. Parties are free to contest any discovery request before the court. The court will determine whether the request is valid and the extent of the required disclosure. Failure to produce discovery can lead to sanctions from the court. In severe cases, it can lead to the court deeming certain allegations to be true and not subject to dispute.
• Note: A very hot topic in the field of discovery is E-discovery or electronic discovery. E-discovery concerns files stored electronically on computers, servers, hard drives, or in the cloud. Today, records are very easily destroyed and hidden. Individuals who are adept at scouring computer files to identify relevant information are very valuable.
• Discussion: Do you think the power of the court to order discovery in a civil suit is too limited or too broad? What are the justifications for allowing each party such broad discovery power? Are you convinced by these reasons?
• Practice Question: Amy is suing Michael’s business for breach of contract. Amy requests all sorts of records of Michael’s business activities. She also includes a request for production of his personal bank account statements. Will Michael have to surrender his personal bank account records to Amy?