Overview of the Discovery Process in Lawsuits

This article will explore the interaction between discovery and litigation. It will discuss the importance of the discovery process in preparing for a trial and will explain the various types of discovery and how to use them effectively before and during trial. Discovery is a formal investigation in which both sides gather facts about the case in preparation for trial. It gives parties potential evidence which helps in defining their trial strategies. Governed by the civil rules, evidence is obtained from the opposing party through several discovery methods. This process is important and necessary as the civil rules permit a free exchange of information in an adversarial process which can be used by either side at trial.

The Purpose and Objectives of the Discovery Process in Litigation

The objective of formal discovery is to gather as much information from the opposing party or witness to be used at trial. It helps a party learn more about the opposing parties’ case. Gathering the information before trial allows parties to better focus on their strategy and determine the facts. It allows them to access information that would not be readily known or available using the power of the court. As to the purpose of discovery, it allows parties to understand the strengths and weaknesses in their case. By looking at the evidence, the parties can better prepare for trial and make better decisions. It streamlines the trial process by concentrating on specific disputed issues allowing for focus on only relevant matters. Discovery also allows for the confirmation of sworn testimony before trial. It can be a useful tool for impeachment of a witness if the discovery and trial testimony are in conflict. It can also be useful for settlement as critical information can be uncovered. Once uncovered, a party may choose to settle over proceeding to trial.

The Different Types of Discovery Methods

The following are various types of commonly used discovery methods:

  • Depositions: In this method, each side asks either the other party or a potential witness to answer questions under oath. It assists in narrowing the issues and will confirm what a person will testify to at trial. After a deposition, the parties often have a better understanding of the facts and the case. It can narrow their focus and define their strategies. If at trial, the testimony is inconsistent as between the deposition answers and trial statements, it could have an impact on that person’s credibility.
  • Interrogatories: Are a set of written questions that are to be answered by the opposing party. These answers must be answered under oath within the time allowed by the civil rules. The purpose of these questions is to gather facts and information from the other side to be used at trial. The number of interrogatories are usually limited. In addition, parties may use “special interrogatories” to gather additional information needed for trial. The answers to interrogatories are usually better thought-out as they are in writing.
  • Requests For Production of Documents: In this method, a party will send a request to the opposing side to produce, copy or permit the inspection of certain documents or tangible items. They can include emails, photographs, contracts, insurance policies, medical records, or any document relative to the case. These requests are specific and limited in number. They must be “reasonably calculated to lead to the discovery of relevant, admissible evidence.” These requests, if worded properly, can lead to the use of relevant evidence at trial.
  • Requests for Admissions: Are questions asked by either party that allows the opposing party to admit or deny the truth of the statement under oath. If admitted, the statement can be used at trial and will be considered true. If denied, the party does not admit to the truth of the statement. If denied, the party asking for the admission must prove the efficacy of the statement at trial. Admissions can determine which evidence is in dispute. If not answered in a timely fashion, the admission can be deemed admitted. Admissions can narrow the scope of the trial by the admission of certain evidence making the process more efficient and less costly.

The Scope of Discovery and Relevance

The scope of discovery is controlled by the judge under the civil rules. It allows parties to gather discovery that is not privileged and relevant to a party’s case. It will include facts by persons who have discoverable matter as well as information about the location, existence, description, nature and custody of documents. If not relevant, the evidence will not be discoverable. Discovery questions that are vague, ambiguous, argumentative, overbroad, or ask for legal conclusions will be objectionable. If the objection is sustained by the judge, the information will not be allowed at the trial.

The Timeline of the Discovery Process

The discovery process begins with the filing of the complaint against an opposing party. The opposing party responds to the allegations in the complaint within the time limit set by the civil rules. The judge will set the guidelines for discovery at a pretrial conference and will establish a schedule for the case. Once completed, the parties will move into the discovery phase. Depositions will be scheduled, interrogatories and requests for production of documents will be exchanged, and requests for admissions will be filed. All these tools assist the parties in trial strategy, challenging credibility, and narrowing the issues for trial. Once discovery is completed, motions based on the evidence obtained in discovery will be filed. These motions can limit the evidence at trial or in some cases, have the judge dismiss the case in its entirety. Once complete, the judge will issue an order outlining the court’s trial process. The case then proceeds to trial supported by the evidence gathered in discovery. Always remember to timely respond to discovery requests or you risk the judge disallowing certain evidence needed at trial.

Resolving Discovery Disputes

As with most parts of litigation, the discovery process can become adversarial. This might manifest itself in a refusal by one party to produce the requested documents or answer the requested interrogatories or requests for admission. The parties may have a dispute regarding the manner of and form of deposition testimony. In most instances, the judge presiding over the case will want the parties to resolve all discovery disputes amongst themselves. After a good faith effort to do so, the issue may require a briefing to the judge for a ruling or otherwise involve the court directing the party. If the parties reach an impasse, the parties may file motions to compel which ask the court to order a party to comply. There are various other objections that might be involved such as privilege or other reasons why the discovery request is not complied with. These disputes are usually resolved by the judge after motions are filed or a hearing is held. In egregious cases where the rules of discovery are not followed, sanctions can be imposed by the judge.
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Dennis P. Sawan

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Chris Sawan


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