Discovery is a part of a civil case before trial where both parties attempt to “discover” facts about the case held by the other side. Discovery is an essential part of preparing for trial. The purpose of discovery is not only to gather evidence and information for the trial but also to help each party learn the strengths and weaknesses of their case. Discovery can result in a settlement, eliminating the need for a trial.
Electronic discovery or “e-discovery” refers to the discovery of information stored in electronic form (often referred to as Electronically Stored Information, or ESI for short).
In most civil litigation, and especially in medical malpractice cases, a substantial amount of time is taken up with discovery proceedings between the filing of the plaintiff’s complaint and the point at which the case is ready for trial. The discovery process can be lengthy and costly.
Alternatives to litigation are popular for resolving disputes because they eliminate the costs of discovery.
During discovery, the parties are supposed to find out the truth and prepare their cases properly.
As long as there is a chance that the information will lead to admissible evidence, discovery rules are liberal, allowing parties to obtain the information they might not otherwise be able to use in court. There is no guarantee that all the information developed in discovery will be used at trial. The scope of pretrial discovery is much wider than the scope of admissible evidence as defined by the rules of evidence.
Civil discovery in the United States is broadly construed, and parties to a civil action may seek virtually any material that is reasonably calculated to lead to the discovery of admissible evidence. As a result, this standard is broader than simply relevant evidence because it contemplates exploring materials and testimony that may not be directly relevant but could lead to discovering other relevant evidence.
State discovery rules vary, but most follow the Federal Rule of Civil Procedure 26. Each party can look into any matter that is relevant to the case, except that which is privileged.
Examples include the custody or location of:
- Books,
- Documents,
- Physical things, or
- A person’s identity.
Discovery, however, is not limitless. The discovery of certain types of information is generally prohibited, including trade secrets, attorney-client communications, conversations between spouses, and work products produced by the opposing party and their attorney.
The type of case and the party’s status may determine what type of information is protected. For example, juvenile criminal records, medical records, and psychiatric records.
What Is a Privileged Communication?
A privileged communication contains all three elements listed below:
- When you created a communication, you assumed it would not be seen by anyone else,
- The communication is considered confidential by law, such as guidance from a doctor or conversations between spouses.
- Communication was not made with other people.
Other communications may also be considered privileged. Testimony from discovery that amounts to self-incrimination may be excluded.
What Are the Tools in Discovery?
To conduct discovery, lawyers and courts use four basic tools:
Depositions
A deposition is when a witness to a case gives out-of-court testimony that will be put into writing and later used in court. The court reporter typically attends a deposition as a representative of the court. The deposition usually takes place at the office of the court reporter or at a law firm representing one of the parties. The purpose of depositions is twofold: 1) to record the testimony of witnesses while their memories are still fresh, and 2) to give all parties a fair preview of the evidence likely to be presented at trial.
The deposition lets a party know what a witness will say at trial. Depositions can also be taken to obtain the testimony of important witnesses who cannot be present at the trial. In that case, their testimony is re-read at the trial.
In many cases, the opposing side will take the deposition of a witness and use it to discredit the witness’s testimony at trial if the testimony at trial differs from the deposition. During a trial, a lawyer might ask a witness, “Are you lying now, or were you lying then?”
Depositions generally consist of an oral examination followed by cross-examination by the opposing party.
Interrogatories
An interrogatory is a written letter sent to the other side in a case asking them to answer a question. Generally, interrogatories consist of 25 to 35 questions, depending on the state.
Interrogatories, unlike admission requests, ask open-ended questions.
Though most interrogatories should be tailored to each particular case, many of the questions are generic enough to be copied from case to case. For example, in personal injury cases, the question may simply be “Describe the nature and extent of your injuries” or “Identify the physician you saw to treat your injuries.”
Request for Admissions
In a request for admission, you state a fact to the other side of the case that can be admitted, denied, or objected to. Requests for admissions are typically limited to 30 questions, just like interrogatories. Requests for admissions ask another party to either admit or deny certain carefully worded questions.
It is possible, for example, for one party to request that the other party admit certain specific facts relating to a car accident that would tend to prove that party’s liability. It may seem redundant to request admissions since parties are asked to admit or deny allegations in the original document that initiates a lawsuit, usually called the complaint or the petition. When used properly, they allow a party to explore issues beyond those required to state a cause of action so that certain reasonable inferences can be drawn from the answers provided.
Unlike interrogatories, requests for admission usually take the form of true or false questions. When admission requests are presented to the court, they are presumed to be factual unless the judge allows them to be withdrawn or amended.
Request for Production
Written requests for production are letters sent to the other side in a case asking for specific books, documents, or physical items for inspection and copying. Among the most useful tools for discovery, requests for production allow one party to ask the other for documents or other tangible evidence, including electronic records.
During this process, the parties will actually obtain most of the physical evidence that they will use during the trial. Requests for production are also known as document requests, notices to produce, or demands for inspections of documents.
Electronic evidence, such as e-mails and hard drives, can also be requested for production. The requests can be denied if they would violate privileged communications.
Presented with such requests, parties may respond and explain that the evidence requested is not available for various reasons: for example, the documents were destroyed, or the items in question were no longer in the party’s possession.
Do I Need an Attorney for Discovery?
Suppose you have reached a point in a civil trial where discovery will occur, or you are asked to respond to any of the discovery tools. In that case, it is highly suggested that you contact a civil attorney because they will be able to explain things to you and help protect your rights.
The discovery process is very complicated and requires the assistance of an attorney. Although many small claims cases lack discovery, few parts of civil action can be more time-consuming, complicated, or crucial to the case’s outcome than discovery. If in doubt, hire a competent, experienced attorney to assist you with the discovery process.
