Therefore, the Court will commonly take steps to encourage early resolution of the lawsuit, such as conducting a settlement conference at the outset, or assigning the matter to a magistrate for the same purpose. Nonetheless, if early settlement is not a realistic possibility, the Court will set a schedule so that the defendant can respond to the Complaint and the parties can conduct discovery. The parties will have to right to exchange written discovery, request the production of relevant documents and take depositions. Discovery in an environmental enforcement action is often more complex and time-consuming than other types of cases. The question as to what is relevant or what is reasonably calculated to lead to discoverable information is often in dispute.
Document production is generally voluminous, especially in multimedia actions.
Depositions of plant personnel and environmental control personnel are also intimidating and potentially disruptive of operations. Even if a corporate defendant has, in its opinion, a strong defense to the allegations in the Complaint, information produced in discovery may otherwise be damaging, and the government may consider amending its Complaint based on information produced in discovery. Once discovery is completed, the parties may consider filing dispositive motions. Because most environmental violations are premised on strict liability, it is difficult to obtain summary judgment, unless the issue is strictly limited to a legal interpretation of the statute or regulations, or the corporation has a legal defense which bars the cause of action. Following discovery and motions, the matter is ready to proceed to trial.