By Don R. McGuire, Jr., RPh, JD
This series, Pharmacy and the Law, is presented by Pharmacists Mutual Insurance Company and your State Pharmacy Association through Pharmacy Marketing Group, Inc., a company dedicated to providing quality products and services to the pharmacy community.
Ask anyone who works in the claims department at an insurance company and they will tell you that the discovery phase of litigation is the most time-consuming and expensive part of the process. But if you don’t work in the claims department or a law firm, could you readily explain what discovery is and why it is so costly?
Discovery is defined by Rules 26 to 37 of the Federal Rules of Civil Procedure. Discovery is a process where opposing sides in the litigation share information about the case with each other. This process is mandatory, although compliance with the rules is generally self-enforced by the parties. This sharing of information takes many forms and helps each side to evaluate the strengths and weaknesses of its case prior to trial. These forms include; 1. Depositions by oral examination, 2. Depositions by written questions, 3. Interrogatories to parties, 4. Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes, 5. Physical and mental examinations, and 6. Requests for admissions.
Depositions, whether written or oral, are one of the largest cost drivers in the discovery process. Little use of depositions by written questions is seen in most cases, so I will concentrate on deposition by oral examination. The main reason that this exchange consumes so much time and money is that nearly anyone connected with the case can be deposed. The parties, employees of the parties, fact witnesses, and expert witnesses can all be deposed. Depending on the complexity of the case, the deposition can be a half-day, whole day or potentially even multiple days. Coordinating witnesses’, parties’, and attorneys’ schedules can be a nightmare. This is multiplied in multiple defendant cases or class action cases. Depositions are important because they give a preview of what a witness is going to say on the stand at trial. Witness testimony is crucial to evaluating a case. Preparation for a deposition, taking the deposition and analysis of the answers is time consuming for your attorney. If the number of depositions is large, discovery is well on its way to being the most expensive part of litigation.
Interrogatories are written questions that can only be submitted to the opposing party. They cannot be used to gain information from witnesses or other non-parties. There is a limit to the number of interrogatories that can be served on the opposition. Many times interrogatories are used to gather background facts such as date of birth, address, work history, and arrest records. As with deposition questions, it is permissible to object to questions, but the objecting party must have a good faith basis to object, beyond just not wanting to answer.
Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes is comprised of two parts. The inspection of land and/or buildings occurs when relevant, but the bigger issue here is documents. In the not-too-distant past, this rule dealt almost exclusively with documents. Not so today. This rule encompasses not only paper documents, but e-documents, email, spreadsheets, photos, drawings, and almost anything else that you can imagine. Recent changes to the rule require that electronic documents be produced electronically to preserve the metadata. Metadata and its implications are a topic of their own, but be aware that metadata can have a dramatic impact on the evidentiary value of the documents themselves. When the case involves a complex issue and/or a long-running issue, it doesn’t take too long for these requests for production to take on a life (and an expense) of their own.
Parties may also request that the opposing party undergo a physical or mental examination. This is not automatic. The request must be approved by the court. The examination must be relevant to some issue in the case, so this cannot be requested without reason. This is usually used in situations where the party wants an independent opinion on, or verification of, the opposing party’s condition.
The last form of discovery is the request for admission. This is a written request to the opposing party asking them to admit the truth of some facts, application of the law to the facts, or the genuineness of documents. As you might have guessed by now, the item in question must be relevant to the case at hand. The responding party must admit as requested, deny or object to the request. Making an admission under this rule renders the issue decided and the issue is not debated at trial. This rule has the potential to actually shorten a trial.
Discovery is self-governed by the parties and the rules provide deadlines for responding to the various forms of requests. Also, the parties cooperate to establish an overall schedule for discovery to take place so that depositions, etc., are completed during a reasonable timeframe. Disputes about discovery make their way in front of a judge. The judge can order the parties to participate in discovery and can impose further sanctions, up to and including dismissal of the case, for failure to do so.
Discovery is a very important part of the litigation process, but it can be very time-consuming and expensive to comply with. This is especially true for the pharmacist defendant who has to take time away to be deposed or spend valuable time searching for and organizing records. Your attorney does realize the impact that discovery has on your life, but your attorney also knows the potential downside for failure to comply.
1 I will use the Federal rules for this article because they are consistent nationwide. Many states mimic them for their own rules, but you should make sure which approach your state takes.
© Don R. McGuire Jr., R.Ph., J.D., is General Counsel, Senior Vice President, Risk Management & Compliance at Pharmacists Mutual Insurance Company.
This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with policies and procedures of their employers and insurance companies, and act accordingly.