The Discovery (not the channel)

One of the last cases I observed in court was about medical malpractice.The victim died because of an alleged professional negligence of the health care provider: long story short, at the time the victim was admitted to the hospital, despite the symptoms, the personnel didn't realize the victim was experiencing overdose of opiates and allegedly misdiagnosed and gave him the wrong treatment. As said, this resulted in the victim's death. I personally attended the examination of two witnesses, one was a toxicologist and the other one was one of the doctors (I think from the E.R. Department) that took care of the victim at the very moment he arrived at the hospital.

Observing this case made me think about two aspects of the U.S. System: the first is the process of discovery, the other one being the general category of torts, in which can be included the category of medical malpractice. Let's proceed in order.

As for the discovery process, what sparked my interest was the fact that the first witness, the toxicologist, while testifying, openly contradicted a sworn deposition he had previously given to the defendant's attorney, saying that at that time he had made a mistake. As I understood, as soon as he was able to read his deposition, the doctor reported his mistake to the plaintiff's attorney (like 30 days before the hearing) who, by the way, didn't give this information to the counterpart. As far as I could see, this represents a discovery violation. In order to fully understand what this means, first we have to know what a discovery process is.

In U.S. Law, the discovery is the pre-trial phase in which each party, following the laws of civil procedure, can obtain evidence from the opposite party. This methodical process is aims to disclose of every relevant fact or document to the opposite party and is a hallmark of the American legal system which has origins that trace back to the jurisprudence of the federal court system in the late '40s, and since then every state has followed this trend.

The entire process is displayed by the parties that, before the trial, require each other to disclose the information that are essential for the preparation of the case. Discovery can be also obtained from non-parties using subpoenas (orders from the authority that has the power to compel testimony by a witness or production of evidence) and generally does not involve going to court and it is mostly performed by the parties themselves, with minimal judicial overview.

At this point, the duty of transparency and the honesty that lay at the very basis of this institution is quite evident . A party cannot refuse to respond (unless it is privileged or confidential information) and a motion to the court can be filed by asking a judge to compel the opposite party to respond to a discovery request or impose consequences (fines, fees or other sanctions) if a request is unreasonable, if a party is not responding appropriately or on time, or for other reasons allowed by the law.

In relation to the last article I wrote, it is worthy to mention that if a case ends with a settlement, most of the time it happens after the discovery process, when both sides are aware of each other's strengths and weaknesses. This saves the risks and the costs of a trial, even though discovery itself can be very expensive, intrusive and frustrating. That's why you need the assistance of a good lawyer during this phase and that's why it can end with in high fees.

We can find a similar procedure in the Italian system (i.e. fase istruttoria), with the big difference being that the fase istruttoria happens in the court: any request for interrogation, production of documents, admissions, depositions or expert depositions are filed in written petitions and it is up to the judge\court to decide wether or not a request can be admitted.

The discovery procedure has often been criticized as favoring the richer and wealthier side, as it may become a stressful war of attrition.

Time-consuming and expensive information requests, production of hundreds of thousands of documents of questionable relevance to the case or requests for orders to prevent the deposition of key witnesses are just some of the unpleasant techniques that can be used by lawyers (and this of course means high fees).

“With the noble sentiment of "leveling the playing field" so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. "Discovery" is anything but ... Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal” - Cameron Stracher, writer, law professor, media lawyer -