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Discovery is the pre-trial phase in a court case during which each party can use certain methods to obtain information and facts and gather evidence about the case in preparation for trial. It is the principal fact-finding method in the litigation process.

Almost all trial courts allow a wide scope for discovery, the theory being that all parties should go to trial with as much knowledge as possible, and that the parties should not be able to keep secrets from each other. This broad right can involve the discovery of any material relevant to the case excepting privileged information that is privileged or information that is the work product of the lawyers for the other side.

This is different from what you’ve seen on television and in the movies where there is a surprise witness or a missing document is found. The goal of discovery is to avoid surprises and for all parties to go to trial with as much information as possible. Not surprisingly, many cases will settle during the discovery phase as a result of what is discovered and what would be unwise to disclose in discovery.

In practice, the majority of civil cases settle after or during discovery. After discovery, both sides usually are in agreement about the strength and weaknesses of their cases, which may lead to a settlement that eliminates the expense and risks of a trial. The use of discovery is sometimes criticized as favoring the wealthier side as one tactic is to make requests of information that are expensive and time-consuming for the other side to fulfill.

Types of Discovery
The most common types of discovery include:

  • Required Disclosures. Parties are required to disclose certain information regarding four kinds of core information without a discovery request that concerns witnesses, documents, damages, and insurance. Parties must also disclose information about any expert witnesses who may be used at trial to present evidence. Any report written by an expert retained to give testimony must also be disclosed. Before trial, the parties must disclose witnesses who will be called at trial and those who may be called at trial including those witnesses who will be presented through depositions. In addition, the parties must disclose a list of exhibits that will be presented at trial and exhibits that may be presented at trial.

  • Depositions. A device by which one party asks oral questions of the other party or of a witness for the other party. The deposition is taken under oath outside of the courtroom, usually in one of the attorney’s offices. The deposition is transcribed by a court reporter and a copy of the transcript is provided to both parties. The transcript of a deposition may be used as evidence at trial.
  • Written interrogatories. A set of written questions about the case submitted by one party to the other party, witness, or other person having information of interest which must be answered under oath, and the answers to which must be provided to the requesting party within a set period of time.
  • Production of documents and tangible things. A written request asking the other party to produce specified documents or things relevant to the case. An early request to view documents and other evidence allow for a viewing of evidence that might deteriorate over time. It will also prevent many instances of the disposing of such evidence.
  • Physical and mental examinations. A written request submitted to the other party requesting that a physical and/or mental examination be made of a party.
  • Requests for admission. Written statements of facts concerning the case that are submitted to the other party that the party is required to admit or deny. Statements that are admitted will be treated by the court as having been established and need not be proven at trial.

All discovery requests must be reasonably complied with, answered, or objected to in the proper amount of time. If discovery requests are not answered or objected to, and sometimes if they are improperly answered or an improper objection is made, the side requesting the discovery may ask the court to compel proper responses, including the production of the requested discovery. The court may assess sanctions against a party not responding properly to discovery requests.

Conducting Discovery Once an answer to a lawsuit is filed, the time for conducting discovery begins. The timing and methods for conducting discovery will vary from state to state and from court to court. There are substantial and numerous rules governing discovery in each case. You should check your state rules and court rules for conducting discovery. Although there is a broad scope of what may be requested in discovery, there are strict deadlines for requesting discovery and responding to discovery requests. It is very important to be aware of and follow the deadlines because of the potentially serious consequences for non-compliance.

Discovery is conducted by sending written requests in a proscribed form to the opposing party specifically listing the type of discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.

Each state’s rules will include versions of the following rules:

    1. Written Interrogatories
    2. Demands for Inspection
    3. Requests for Admission
    4. Propounding Party (party making the discovery request)
      • Format of the discovery request;
      • On whom the request should be served;
      • Which party retains custody of the original discovery request; and
      • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).
  1. Responding Party
    • Format of written response;
    • Effect of failure to respond in timely fashion;
    • Objections to the discovery request;
    • Verification (responding party must sign the responses under oath);
    • On whom the responses should be served; and
    • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).

    Each state will have its own rules as to when a plaintiff and when a defendant may serve notice of taking a deposition that is initiated by serving notice on the other party in the required format. The notice will indicate whose deposition will be taken, when it will be taken, and where it will be taken. There will also be rules concerning compelling a person or party to be deposed and steps to take to compel attendance at a deposition.

    Each state will have its own rules as to the production of documents and tangible things. The party requesting the production must serve notice of the request in the required format. The notice will indicate which documents and things are to be produced, and when and where they are to be produced. There will also be rules for steps to take to compel production.

    It is a general rule that all parties involved in civil litigation, whether represented by an attorney or not, should be civil to each other. One of the things encompassed within this requirement for civility is the accommodation of each other’s schedules within reason and is particularly important with discovery because of the tremendous amount of information being obtained and exchanged. If either party reasonably requests to change a time for a deposition or the time for exchange of documents, the other party should be accommodating. If the other party seems to make a practice of requesting changes, not complying with discovery requests, or only partially complying, it might be time to go to court and request sanctions.

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