What is Discovery?
Once a lawsuit is started, the law requires disclosure of all relevant facts and documents of the case to the opposing side prior to trial. This process of exchanging information is called “discovery.” Discovery assists all parties in getting at the underlying facts of the dispute and understanding the strengths and weaknesses of their respective cases. It also avoids surprises at trial and can sometimes help facilitate a settlement.
Considerations Before Discovery Begins
Discovery can be a grueling and intrusive process. You will be personally scrutinized, as will any documents, conversations, emails, notes, or letters that are involved in the case. It may take a long time, cost a great deal and allow the opposing side access to highly personal information. How these intrusions will affect you should be a consideration as you decide to proceed with a lawsuit.
However, discovery can also be a very revealing and insightful process, bringing out important facts on both sides. That is why absolute honesty during discovery is critical. You must be honest with your attorney and to the other side. Since discovery will likely reveal the truth anyway, your attorney cannot effectively help you if you are not honest about the information you have even if it is unflattering or difficult. In addition, lying to the other side during discovery can carry serious penalties that will certainly hurt your case.
How Is Discovery Conducted?
The primary methods of discovery are exchange of written information, document production, and depositions. In certain cases, discovery can include physical inspection of tangible things (e.g. buildings, objects), or a mental or physical examination by a medical professional.
Written discovery is usually in the form of “interrogatories” or “requests for admissions.”
- Interrogatories are a series of written questions sent to the other side designed to determine each party’s version of the facts and claims. The questions may be unfair or irrelevant. It may be appropriate to object to such questions and refrain from answering them.
- Requests for admission ask the party to admit or deny certain facts. Requests for admissions must be answered truthfully and a party may be penalized for not timely answering the requests or for answering them falsely.
Document production is the exchange of documents, which may relate to the case. With some exceptions, each party has a right to see documents related to the case. Increasingly, many “documents” are electronic, stored either on individual computer hard drives or on networked computers. A document production request often requires turning over electronic versions of information stored on a hard drive.
Depositions are statements taken under oath. The attorney will ask questions of the witness or party in the lawsuit with a court reporter creating a written a transcript. The attorney’s questions are usually tailored to discover a witness’s recollections, memories, or his or her version of past events. Depositions can also help evaluate how a witness will possibly testify at trial–his or her demeanor when asked direct questions by an attorney and his or her ability to establish the underlying facts. In addition, depositions “lock” a witness into a certain version of events, which can be used later at trial if the witness varies or changes their version at trial.
Attorneys usually spend some time helping witnesses prepare for a deposition, explaining what to expect and how to respond. Two things attorneys tell their witnesses: never guess and never give away too much information. Witnesses often don’t know that it is acceptable to say “I don’t know” if they don’t know an answer. Additionally, it is important that witnesses not offer additional information or explanations when asked specific questions. Often additional information or explanations can open a door for the opposing attorney, which may end up hurting your case.
Does the Other Side Have the Right to Everything During Discovery?
Generally, all evidence which is relevant to the lawsuit can be discovered, even if the person feels the information is personal or unflattering. Under limited circumstances, the court can issue a “protective order” which prevents the other side from accessing certain types of documents or information. For example, protective orders may be issued to protect private personal information (e.g. financial statements, tax returns) or medical information that may not be relevant to the lawsuit. However, a protective order usually will not be granted simply because the information is private, damaging or embarrassing to either side. If the information is relevant to the lawsuit, it’s likely that the court will allow it to be revealed.