Discovering Discovery: What are ‘Documents’?

Discovery is a legal process where the parties involved exchange relevant documents and information to properly assess the veracity and legal strength of any claim being made. It made the news recently when Jay Z destroyed evidence relevant to an upcoming contractual dispute. You can find out more on the California Courts Discovery webpage.

So, what documents do you need to disclose during the discovery process?

The FTC: ‘All Documents’ means more than email and files

The FTC recently penned an article outlining that while emails, memoranda, voicemails, SMS and instant messages, notes, and collaborative documents are routinely discovered, recipients should be careful not to “unilaterally omit any category of documents or materials”.

It notes that responsive communications, like Slack Channel, Hangouts, Teams, or iMessage discussions) and collaborative documents created using programs like Confluence and Quip should be included. A warning of ‘unwelcome consequences’ for parties who don’t comply was included in the article.

Discovery in California Courts

The rules around discovery are convoluted and do vary between states and at the federal court level. They also differ between governmental departments.

What you need to supply will vary depending on the requests made. But, generally speaking, you’ll need to supply all relevant documents and information, including the categories of documents outlined above. You may also be asked to supply digital information, like file metadata.

A major change was introduced to the California discovery process on January 1, 2020. It requires parties to label the documents so that they clearly identify the connection between the document being supplied and the request.

‘Privileged documents’, like the communications between you and your attorneys, need not be discovered.

Don’t hesitate to reach out if you need any assistance with your company’s legal needs. We’re here to help!

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