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This article, however, seeks to emphasize rules already existing, which, if fully
utilized, may already make a dent on the “problems” besetting practice today.
The quote of Boies above was made in respect to his famous Microsoft
antitrust case where he represented the United States government against
corporate giant Microsoft and its leader Bill Gates. While many debate the
validity of the claims and defenses in that case or even the manner by which
the case was handled, the undisputed fact is that this case cemented Boies’
place as one of the most accomplished litigators of modern times.
In the Microsoft case, Boies had an extensive and even acrimonious
examination of Bill Gates -- not during trial -- but in a videotaped deposition at
the Microsoft Headquarters in Redwood, Washington. This deposition is
viewed as one of the key factors in ultimately securing a favorable judgment
against Microsoft, and Boies accomplished the same without even having to
present the witness at the actual hearing. It was in this context that Boies
summarized the value of discovery proceedings in his autobiography: “The
purpose of discovery is to further the search for truth by giving equal access to
facts and evidence by eliminating ‘trial by ambush’, where one side hides
evidence it wants to spring at trial on an unsuspecting opponent”.
In the hit US show Suits, for instance, there was a recurring storyline about
how one of the documents required for discovery may have been “buried” by
the secretary of the lead lawyer. Also in that show, there was a dramatic
confrontation between a current and former partner of the fictional law office of
Pearson Hardman in a deposition, and this ultimately led to the settlement of
the claims. I also recall Michael Crichton’s Disclosure where the scandalous
revelations of alleged sexual harassment were made in a deposition. More
recently, in the movie Social Network, there was a portrayal of the deposition
of the Winklevoss twins with respect to their proprietary claims
over Facebook.
Our Rules of Court provide for six modes of discovery – Depositions Pending
Action (Rule 23); Depositions Before Action or Pending Appeal (Rule 24);
Interrogatories to Parties (Rule 25); Admission by Adverse Party (Rule 26);
Production or Inspection of Things (Rule 27); and Physical or Mental
Examination of Persons (Rule 28). The Rules of Court sought to emphasize
the importance of these modes of discovery by imposing sanctions for their
non-use or refusal to comply. (Rule 29) Despite this, use of discovery
procedures is minimal.
I have had the occasion of availing of modes of discovery in some cases. It
can be a potent tool to advance a client’s cause and to expose the frivolity of
the opposing party’s claims.
For instance, under Rule 23 of the Rules of Court, a party may seek the
deposition of any person, whether a party to the case or not, after jurisdiction
over the defendant is acquired. This deposition is an examination on ANY
relevant matter, so long as it is not privileged. In other words, once a case is
filed, one need not wait for trial proper before eliciting testimony from an
intended witness. There is no restriction on whom you may call, provided
there is notice on opposing party.
It is evident how this mode of discovery can expedite proceedings. There will
already be a full analysis of the evidence that will be necessary and the
Courts will have basis to require that ALL evidence be submitted before it
even before trial proper begins. This can eliminate many resettings caused by
the regular fare of “witness is still being interviewed” or “documents still being
located” commonly invoked during trial proper.
Two modes of discovery that are commonly utilized are the Interrogatories to
Parties (Rule 25) and Request for Admission from Adverse Party (Rule 26).
For Interrogatories, the applicant may send a set of written questions to the
adverse party on any material and relevant fact which the adverse party has
to respond to within fifteen days from receipt. If this mode of discovery is not
availed of, the adverse party may not be called to the witness stand to give
testimony during the trial or to give a deposition pending appeal.
A request for production and inspection of things (Rule 27) may also be made
during trial. If the application is found to be meritorious, the Court may order a
party to produce or permit the inspection and copying or photographing any
document, paper, book, account, letter, photograph, object or tangible thing
provided they are not privileged. The Court may also order a party to permit
entry in his property for the purpose of inspecting, measuring, surveying or
photographing the property.
It is patent that these rules, if used properly, will greatly aid in the litigation
process. No longer is one restricted by distance, for instance, as he can
secure the deposition of a witness who may be based even abroad. This will
eliminate interminable delays and the cost of arranging for the witness to be
transported and to appear before Court. With the production of documents,
parties can be fully apprised of potentially voluminous evidence that will tax
the Court’s time if examined in open court. The request for admission and
interrogatories cuts through only the contested points, and trial can be
confined to those matters.