The purpose of discovery is to provide a mechanism for making relevant information available to each party and their lawyers. As the United State’s Supreme Court noted, “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). Discovery enables parties to prepare their cases thoroughly, promote fairness, and encourage fair settlement by uncovering the facts essential to the dispute. Discovery is typically the longest and most time consuming phase of civil litigation.
If you are asking questions like, “What is discovery in a lawsuit?” or “How do I prepare for a deposition?” or “Can I refuse to answer discovery requests?” this guide will provide some general answers you need to understand this critical stage of civil litigation.
1. Timing
Discovery typically begins after the initial pleadings are filed and the court issues a scheduling order. The timing and deadlines for discovery are governed by procedural rules and the court’s case-specific orders.
- Initial Disclosures:
- Some courts require automatic exchange of specific information early in the case, such as witness lists and relevant documents.
- Discovery Deadlines:
- Deadlines for completing discovery are set by the court with the help of the parties and their lawyers to ensure the case proceeds efficiently toward trial.
Timely compliance with discovery obligations is crucial, as missing deadlines can lead to sanctions or exclusion of evidence.
2. Requirement to Be Honest and Forthcoming
Discovery is mandatory and conducted under oath, meaning parties cannot avoid it and must provide truthful and complete responses. Failure to do so can result in severe consequences, including perjury charges, sanctions, or adverse rulings in the case.
- Duty to Supplement:
- If new information becomes available, parties are required to update their discovery responses promptly.
- Good Faith Obligation:
- Courts expect parties to approach discovery with honesty and integrity, avoiding tactics meant to obstruct or delay the process.
3. Scope of Discovery
The scope of discovery is broad, encompassing anything relevant to the claims or defenses in the case or that could reasonably lead to relevant information.
Relevance Standard
- Definition:
- Information need not be admissible at trial to be discoverable, as long as it is reasonably calculated to lead to admissible evidence.
Exclusions
- Privilege:
- Certain communications, such as attorney-client privilege or work product, are protected and cannot be disclosed absent rare exceptions.
- Confidentiality:
- Confidential information, such as trade secrets or medical records, are not automatically excluded but may require protective orders to prevent misuse.
4. Written Discovery
Written discovery allows parties to obtain detailed information and documents from the opposing side. The three primary forms of written discovery are:
Interrogatories
- Definition:
- Written questions that the opposing party must answer under oath.
- Purpose:
- To gather factual information about the case, such as timelines, key events, and identities of witnesses.
- Limitations:
- Most courts limit the number of interrogatories to 25 per party to prevent overly burdensome requests.
Requests for Production
- Definition:
- Requests for documents, electronically stored information (ESI), or tangible items relevant to the case.
- Examples:
- Emails, contracts, financial records, photographs, or videos.
- Format:
- Responses typically include either the production of the requested items or objections explaining why the items are not being provided.
Requests for Admission
- Definition:
- Requests for the opposing party to admit or deny specific statements of fact or application of law to facts.
- Purpose:
- To narrow the issues in dispute by establishing certain facts as true, simplifying trial preparation.
5. Depositions
Depositions are a key component of discovery, allowing attorneys to question witnesses or parties under oath in a formal setting before a court reporter.
Oral Depositions
- Process:
- The lawyer who noticed the deposition asks the deponent (person being deposed) questions and the deponent’s answers are given under oath, all of which is recorded by the court reporter for later use. The opposing party’s lawyer then has an opportunity to ask the deponent questions in the same manner.
- Purpose:
- To gather detailed testimony, assess credibility, and preserve evidence for trial.
- Preparation:
- Attorneys prepare their clients for deposition by reviewing likely questions and emphasizing the importance of truthful and precise answers.
- Duration:
- Depositions are typically limited in time to one day of eight hours by court rules to prevent abuse.
6. Minimal Court Involvement
Discovery is largely conducted between the parties without direct court involvement. Parties are expected to cooperate and resolve disputes independently. However, court intervention may be necessary in cases of disagreement.
Discovery Disputes
- Examples:
- Objections to discovery requests, failure to respond, failure to all documents/information, destruction of evidence, or disputes over privilege.
- Resolution:
- Parties typically meet and confer to attempt resolution before seeking the court’s assistance through a motion to compel or a motion for protective order.
Sanctions for Misconduct
- Potential Consequences:
- Fines, exclusion of evidence, or dismissal of claims for failing to comply with discovery obligations. Attorneys may be disciplined by their bar association if the misconduct is severe enough.
- Importance of Diligence:
- Despite the severe sanctions parties and their lawyers risk by failing to participate in discovery in good faith, discovery misconduct is unfortunately more common than you may think.
- I have contributed to proving many instances of discovery misconduct to courts, from parties lying in interrogatory responses to destroying and hiding documents. If you want to lawfully gain advantages during discovery, you and your lawyer need to not only comply with all the rules yourself, but be willing to take opposing lawyers and parties to task for discovery misconduct.
Discovery is a critical phase in civil litigation that ensures fairness and thorough preparation for trial. If you need guidance navigating the discovery process or have specific questions about your case, contact me for expert assistance tailored to your needs.
*Disclaimer: the above is for informational purposes only and does not constitute legal advice.