What is Discovery?

Discovery refers to a phase of litigation where the parties seek information from one another. The information which may be requested (discovered) during the discovery phase is very broad. In fact, courts allow the request of information which is "reasonably calculated to lead to the discovery of admissible evidence". Just because the information sought may itself be inadmissible in court does not preclude its discovery. Therefore, a party to litigation may very well have to place much of their past personal lives onto the public record. Discovery can be broken down into several categories: Interrogatories, Request for Production, Request for Admissions and depositions.

Interrogatories are questions which are sent (propounded) from one party to the other. In , a party may send 35 interrogatories to a party. The party to whom the interrogatories are sent must answer the interrogatories within a certain time frame, usually within 15 or 30 days depending on the state. If a party refuses to timely answer interrogatories, they may be compelled to answer them by the court. If a party refuses to answer interrogatories after the court has ordered them to do so, the court may impose a number of sanctions, including a dismissal of the case. The court may also order the party who is being compelled to pay the attorney's fees and court costs incurred in bringing the motion to compel.

The subject of the particular interrogatories may vary. Generally, interrogatories usually seek information regarding the personal, educational and work background of a party and the basis of the claim, including the identity of witnesses and documentary evidence which will support a claim or defense. They may also seek the identity of expert witnesses and the factual basis of the claim or defense.

It is extremely important to answer the interrogatories honestly and accurately. In fact, most states require that the person answering the interrogatories do so under oath, that is, swear to the truthfulness of the answers provided. Objections may be raised to interrogatories which seek information which is privileged (either attorney-client privilege or attorney work product immunity), or which may be overbroad, vague, irrelevant, or otherwise defective. The attorney representing the party usually assists with the answers by adding the relevant objections to the answers. Ultimately, however, it is up to the party to whom the interrogatories are propounded to supply the accurate responses to the interrogatories.

Requests for Production
This discovery device allows a party to request that another party to the litigation produce documents relating to a claim or defense. Usually, there is no limit to the number of requests for production a party may propound to the other side. Like interrogatories, there is a time deadline to produce the documents, usually 15 to 30 days. Like interrogatories, a party may also be compelled by the court to produce documents if they are not produced within the allowable delays. Requests for production usually seek documents specifically related to the claim. In a personal injury case, a party may request income tax returns to verify any claim of lost wages, photographs of an accident scene or damaged property, medical records or bills, W-2 forms, repair estimates, and other out of pocket expenditures related to the claim. They may also seek expert reports or other information gathered by an expert.

In addition to the actual production of the requested documents, the party to whom a request for production is propounded must also provide a written response which details which documents are being produced. Again, like interrogatories, objections may be raised to requests which seek information that is irrelevant, privileged or otherwise not discoverable.

Requests for Admissions
This unique and extremely effective discovery device is designed to narrow the disputed issues between the parties. A request for admission asks a party to admit or deny a fact relevant to the litigation. If the fact is admitted by the party, that fact is deemed to be a stipulated fact which is not in dispute. If a party denies the fact, the fact remains in dispute. However, if a fact has been denied by a party, and that fact is later proved at trial, most jurisdictions allow the party to recover the costs associated with having to prove the fact.

If requests for admissions are not answered within the specified time frame (again 15-30 days), the fact is automatically deemed admitted by the party failing to timely answer. This automatic admission usually motivates the party to promptly respond. However, a party can be compelled in most jurisdictions to answer the request for admission.

Most jurisdictions have specific rules which do not allow a party to arbitrarily deny a request just because they do not readily know the answer or just because the request may relate to the ultimate issue involved in the case. Requests usually are not supposed to seek legal or expert conclusions or the fault in the case.

Depositions are formal question and answer sessions conducted in the presence of a court reporter. A deposition is usually conducted face to face, but may occur by telephone or video conference. Each party is usually represented by their attorney at the deposition. The party taking the deposition has his attorney ask questions of the other party. The deponent, or person whose deposition is being taken, must answer the questions under oath.

Objections may be made to questions being asked of the deponent by his attorney. However, most jurisdictions limit the objections that can be made to objections relating to the form of the question and the responsiveness of the answer. Usually, objections involving leading, hearsay, or other objections relating to the admissibility of the evidence are reserved for trial. Objections relating to the form of the question usually involve a question which is confusing, unclear, ambiguous or otherwise flawed. An example of such a question might be "Sir you sought medical treatment did you not?" If the deponent answers yes, does that mean he did or did not seek medical treatment? Thus, an appropriate objection to the form of the question is in order.

Generally, unless the question is seeking privileged information, is redundant or harassing, a party must answer the question and his attorney may not direct him to refuse to answer the question. A party may be compelled by the court to sit for a deposition or to answer a question which he refused to answer during a deposition. Again, the court may impose sanctions for failing to comply with an order requiring an answer to a question.

Conclusion of Discovery
Most courts do not allow the parties to set a trial date until all discovery is completed by all parties. Given the schedules of the parties, the legal delays for providing answers, the number of parties involved, the discovery phase is the longest phase of any litigation. It may last for years depending on the complexity of the case. Generally, the more sophisticated the case, the longer the discovery phase will take. The attorney who promptly follows up on delayed discovery responses can make the process go faster. However, professional courtesy dictates that motions to compel do not get filed on the first date after the responses are due. Most legal communities are relatively small. Lawyers have to work together on many cases. Courts generally do not condone running to the courthouse over every dispute. They prefer that the parties amicably attempt to work things out first before a motion is filed.