This episode is all about Discovery. No, not the discovery of new land or things on the beach or in your woods, we are talking about things you can bring as evidence into court.
EP 22: Discovery
MARISA: Good morning. Good afternoon. Good evening. This is Environmentally Speaking. I’m Marisa Desautel an environmental attorney with a few decades of experience.
CLARICE: And I’m Clarice. I’m coming in with your questions, topics, and just random things I think we should talk about. And speaking of random things that I would want to talk about, we have a bit of local news or at least local to us. So I was recently sent an article about a humpback whale washing up on Little Compton Beach. The poor guy washed up on January 8th. And if you’re familiar with the Little Compton area, there’s the beautiful South Shore Beach. Unfortunately he did wash up on the beach. He washed up on a private portion of the beach, so if people were out there thinking that they’re going to go for a beach walk and see, you know, a week-old whale, that’s not going to happen. It’s on private property, but I thought that was something interesting. This article said –
MARISA: Yeah. I saw it, too. Go ahead.
CLARICE: This article says that the whale is about 25 feet long and ten tons, but it’s only a young adult. Just the size of this whale is boggling to me.
MARISA: Yeah. I thought I saw in the article that they initially thought it was a female but – or they initially thought it was a male, but it’s actually a female.
CLARICE: Oh, okay. Yeah. The thing that I was reading didn’t have any further detail on the whale’s sex, but DEM has reached out to the owners of that private beach portion and not only are they asking to come in and do some removal but they’re hoping to do an autopsy to learn a little bit more about what’s happened to the whale.
MARISA: Well, Clarice, today is your lucky day because I have an update for you on that.
CLARICE: Oh, yes. Tell me what has happened to this whale.
MARISA: The mystic Aquarium came out and performed an autopsy or what’s known as a necropsy and the conclusion of that was that I believe it is a female – or was a female. Excuse me. And a bulldozer was brought in to give the little lady a proper burial, so she is now buries with respect and the scientists did their thing and hopefully at least her coming ashore will provide some new data and information on climate change and whale population, so.
CLARICE: Possibly pollution. Who knows.
MARISA: Yeah. Yeah.
CLARICE: Well, I’m happy that she’s put to rest and in a morbid but beautiful way she’s going to become some fertilizer for some awesome shore plants and shore growth.
MARISA: Yeah. Yeah. But I saw that, too. I think that was posted on the firm’s social media account.
[0:03:01] MARISA: Yeah. Yeah.
CLARICE: So that’s something to keep an eye on. All right. So shifting gears, today we’re going to talk a little bit about discovery. And not discovery of things on your beach, not discovery of new lands, but discovery in terms of what you can bring in as evidence to court.
MARISA: Yeah. And as soon as you said discovery, I thought of the TV channel.
CLARICE: Oh, Discovery Plus, it’s worth it.
MARISA: Yeah. It is. It’s good stuff. Discovery in the context of what we do, however, has to do with litigation and civil litigation, civil actions, administrative actions, enforcement actions at the state government level and then when you get to the appeals level in superior court. I think we, in the past, have talked about discovery in terms of witness depositions and even funny anecdotes about witnesses testifying.
CLARICE: Testifying, testi-shouting.
MARISA: Testi-shouting. So definitely check out our other podcasts on those issues. But I found that in the context of what most laypeople experience, discovery is not a very well-known practice. Attorneys know all about it, of course, and so do paralegals and other people that work in the industry like you, Clarice, but the layperson doesn’t really know what it is. So that’s what was happening this past week. The firm had a big administrative regulatory proceeding and the scope of discovery in that context is a little different, but it led me to think that it might be a good topic for you and me to talk about.
CLARICE: Yeah. And I think it’s especially important because from the paralegal perspective a lot of times I’ll do the initial intake with clients, or I’ll touch base with them to gather documents and so often I’ll either get a big folder of everything that they’ve got saved, or I’ll get a couple of e-mails with just tons and tons of attachments. And it’s always an interesting and sometimes disappointing moment when you have to tell the client, I love that you’ve given me every receipt since 2015, but they’re not all going to make it.
MARISA: When you say disappointing, is it disappointing for you or the client?
CLARICE: Oh, for them, for them, because like you can see that they – you know, I so appreciate the fact that they’ve taken time and found all the documents that they – that they think will be helpful and, you know, taking that step to make our job easier and kind of keep that relationship running smoothly. So they bring in this big packet and then they’re like, we can use all of it. And I have to say, no, we can’t.
[0:06:11] MARISA: You know, and that’s –
CLARICE: I kick the wind out of their sails and it bums me out.
MARISA: That’s really funny from my perspective because I go bopping along doing my job and I don’t necessarily know that that’s happening. I mean, sometimes I know because you’ll have a specific question or the client will have a question and so I get involved in that aspect, but for the most part when you’re doing client intake the attorney’s not necessarily involved, so I don’t know that that’s going on. And what makes it to my desk is evidence that is relevant and useful and probative, so I don’t necessarily know that that conversation is happening before I’m involved. So would you say that there are two types of clients, the one that gives you a document dump and then the one that doesn’t answer the phone? Are those the two categories?
CLARICE: One hundred percent.
CLARICE: Absolutely, yeah. There’s somebody that says, I don’t know what you need, but you’ll find it as you go. And there’s somebody that says, I don’t know what I need, so here’s everything I own. I do appreciate – and I think this is a quick little anecdote. I had somebody once send a CD filled with photos and on that photo there were a couple photos of like their mailbox and their house number and this was like a wetlands issue in their backyard. So I was just scrolling through things and I was like, oh, that’s odd. And they were like, yeah, it’s proof. It’s proof that it’s my house. I was like, okay.
MARISA: Yeah. You roll with it.
CLARICE: Yeah. I can’t be mad at them.
MARISA: Let’s start there because that’s a – I think that’s a really good example. You know, we’re bringing it up because it’s anecdotal, but that’s more common than you’d think that – and rightfully so. Unless you are a trained lawyer or some other industry professional with knowledge of how discovery works you might think that a certain piece of material, a document, a text message exchange is evidence that will automatically prove your case. So that’s a difficult part of the job for us, I think, is to explain that, hey, actually, no, this picture or this document won’t even make its way into the record. Like we’re not even going to bother with this because we know that it’s just not possible. So that’s the first hurdle, I think, when you’re talking to a client or a potential client about discovery. That’s the first difficult conversation potentially that you could have in the context of discovery.
[0:09:04] CLARICE: Yeah. And I think it kind of goes back to that. For anybody who’s in law school or has completed law school that your first day of evidence – I think one of the first questions my professor had said was, is it relevant, does it have some sort of connection, does it touch the issue in some way. So that’s your first hurdle. And, you know, in this case it was a wetlands issue. Having a picture of your mailbox, you know, with the address down the post isn’t necessarily relevant. There are other ways to show ownership and other ways where you can show ownership and show issue at the same time. So I think for some clients relevancy might be a conversation worth having, though it can be a bit difficult.
MARISA: Yeah. Because it’s so subjective for the client. It can be very subjective. So you mentioned relevancy. That’s the first hurdle, right. And the next one is whether the piece of evidence is probative and that means whether or not the evidence makes a fact at issue more or less likely to be true. So you’ve got two things that you’ve got to overcome or explain or satisfy before a document can even be considered as evidence, relevancy and probativeness. So that’s kind of the nuance for the discovery process right out of the gates. And then the next part of discovery that I wanted to talk about is what else can be considered when you’re moving forward with discovery. In most people’s experience if you’ve been unlucky enough to be deposed because sometimes those can be stressful and negative –
CLARICE: And long.
MARISA: And long, yeah. Yeah. Deposition transcripts are often used as evidence in the context of civil litigation. And compare that with doing regulatory or administrative type of litigation and law which is something that our firm does. You don’t necessarily have depositions. Sometimes your witnesses can file prefiled testimony which when you look at it printed out it has a very similar look. Prefiled testimony and a deposition transcript look pretty similar, but they’re very, very different and it kind of depends on which venue you’re in, superior court, district court versus the public utilities commission, for example. So without boring our listeners too much, those are the two written and narrative question and answer type of discovery materials that you might see. What else is there, Clarice? What else do you deal with?
[0:12:11] CLARICE: Oh, I was thinking in term of evidence you’ve got, is it related, is it relevant to the case, is it probative. I don’t think we deal too often with prejudice. I think that’s more – we see that more on the criminal side or at least I have.
MARISA: Criminal side.
CLARICE: I haven’t seen that issue. But I think, you know, covering all of the different types of evidence and all of – or not just touching on it and thinking about what’s involved in selecting evidence, what’s something that – what’s a conversation that you would have with a client to kind of go over this, or do you typically have conversations with clients about why you’ve selected the evidence you have?
MARISA: What immediately comes to mind when you say that is the environmental litigation context that we work in where – I think we’ve talked about this in another podcast and definitely I wrote a blog about it. But under certain federal and state statutes for environmental contamination there exists something called strict liability and joint and several liability. Those usually go hand in hand. And the federal statute that I’m thinking about particularly has to do with Superfund sites. We’ve definitely talked about these before. My favorite.
CLARICE: Not super fun.
MARISA: Superfund with a D. Where anyone in the chain of title, meaning, anyone that historically or currently owns a piece of property that’s contaminated is liability for that contamination whether or not they caused it. If you owned the property at any point in time for a Superfund property you are responsible for the property’s cleanup. And that blows people’s minds because generally speaking in other situations how can you be legally libel for something that you didn’t do.
CLARICE: Yeah. It goes back to roommate rules. Wash your own plate.
CLARICE: Like when you live with roommates in college and in a dorm, you know, everybody cleans up their own mess. So the idea that that messy room is now any and everybody who lives in that space’s responsibility including the people who lives in that apartment before you, it’s jarring. It’s not what we’re used to.
MARISA: I like that. Superfund is the exact opposite of the roommate rule.
CLARICE: And this is why it sucks.
[0:14:58] MARISA: It’s good for the environment. It’s bad for the landowner if you’re a landowner. And so in the context of environmental law and evidence, the conversation that I have with clients and others about Superfund is any evidence can be used as evidence that you were an owner of the property, number one, which is what I talked about just now. And number two, if there’s any evidence that exists that you caused, contributed, or actually discharged a pollutant on that property you can be held liable.
And what I mean by any piece of evidence, I have literally seen parties use a piece of paper, a scrap of paper that they found with a company’s name on it and a teeny tiny reference to a certain amount of commercial waste and that was it. That was sufficient for purposes of naming the company as a – what’s called a potentially responsible party under the Superfund statute. So in that context forget everything that we’ve talked about because a scrap of paper, is it relevant, sure. Is it probative, I don’t know, but Superfund says you can use it and in that context it’s good enough to name you as a party that has to assist with the cleanup.
CLARICE: Hey. They must have been pretty happy finding that one tiny piece.
MARISA: Yeah. Yeah. And it doesn’t matter how old it is or who found it or where it was found. I mean, it’s a crazy – well, it’s not crazy. I mean, it exists and people use it, so it’s different. It’s a different type of evidentiary standard in the discovery process.
CLARICE: Yeah. So I think a big kind of takeaway or summary of today’s topic is discovery is any sort of evidence gathering or – I don’t want to say fact finding but any fact persuading, maybe —
MARISA: Oh, yeah.
CLARICE: — documents or testimony or things that you and your attorney gather to promote your position. But then going in a little deeper, I think it’s important for clients and folks going into litigation to know that there are a set of rules. There are regulations around these documents and even though we appreciate you taking the time to gather everything, I don’t want you to be disappointed if it all doesn’t make it. I think the general theme is there where we’re shooting for the same goal. Just we might not include every photo or every text screenshot.
[0:18:04] MARISA: It happens.
CLARICE: Yeah. I say still send it.
MARISA: Oh, absolutely.
CLARICE: As the paralegal who sorts through it, still send it all. You might not know how helpful or less helpful something could be, so err on the side of excess. More is better for me.
MARISA: And for the attorney because even if you can’t use a particular document or piece of material and get it entered into the record, it still can be helpful in other ways. So being overinclusive is always something that I request from new clients.
CLARICE: Yeah. Let us do the filtering for you. It’s something that we’re taught about the rules in that aspect, so we can filter. You just send it all over.
MARISA: Yeah. Yeah.
CLARICE: All righty. On that note, thank you guys for listening. If you have any questions, comments, thoughts, if you hear anything about Ms. Whale, I don’t know –
CLARICE: I mean, she’s not all right, but. I was going to say hopefully she’s all right. She’s not all right.
MARISA: She’s not all right, Clarice.
CLARICE: Poor Ms. Whale. Send it to us. Let us know at Help@DesautelESQ.com, our Instagram page. We also have some blog posts that we’ve referenced and a list of all of our episodes up on our website, so if you want to go back and relisten to witness testimony or Superfund sites or things like that you can always refresh there. So hope to hear from you guys soon. Have a good week.
MARISA: Thanks, everybody.