Individuals that are thinking about filing a lawsuit are often confused by the various parts of a lawsuit. One of the more confusing parts of any lawsuit is discovery, or the exchange of facts and evidence between the parties.
Discovery is the legal term used to describe the different processes that require parties in a lawsuit to exchange information that each side possesses. For example, in an employment law case, a fired employee will want to see their personnel file, and through discovery, an employer would likely be required to provide those documents.
Below, you can read about the discovery process, the various tools, and how disputes get resolved.
The Discovery Process
When a lawsuit gets filed, that is considered the formal start to court litigation. Usually, once a defendant answers the complaint, discovery can begin. Formal requests get sent from one party to the other, requesting answers to questions, specific documents, and other evidence, like video or audio recordings, medical files, bank statements, tax records, electronically stored information, and more.
Courts generally limit the period of time for parties to conduct discovery, but parties may be able to, and it is customary to do so, agree to extend deadlines. For some deadlines, court approval will be required.
Often discovery will be conducted in rounds, so that the parties may attempt to negotiate a settlement between engaging in rounds of costly discovery (and it can be very costly). As new information is learned, parties are better able to assess their relative positions, and may be more willing to bargain.
In federal cases, the Federal Rules of Civil Procedure (FRCP) provide the parameters of discovery, while cases in state courts rely on each state’s own rules of civil procedure to govern the process. To facilitate the exchange of information, regardless of whether it is a federal or state case, the law generally provides for the following discovery tools, or discovery devices, as they are sometimes referred to as:
Initial Disclosures: In federal cases, and most states, parties are required to disclose all witnesses and evidence they intend to rely on to prove their case at, or near, the start of discovery. These disclosures must often be updated prior to the end of the discovery time period.
Depositions: These are in-person interrogations by opposing attorneys, outside of the courtroom, but still under oath and in front of a certified court reporter. Parties to a civil lawsuit can be deposed, as can any potential witnesses. Courts will impose limits as to the number of depositions allowed.
Interrogatories: These are written questions that each party can send to the other about the case. Generally the questions must be answered truthfully, although specific legal objections can be made to the questions and thereby limit the scope of the answers provided. Courts often limit the number, and/or type, of interrogatories each party can send.
Request for Production of Documents: Written requests for the exchange of documents and other tangible forms of evidence can be sent just like interrogatories. The answering party must usually either provide a copy of the documents or files, or provide the other side with access to inspect and copy the documents or files themselves.
Requests for Admission: These allow a party to send a list of factual statements to the other party which the answering party must either admit or deny. Like interrogatories, a court will often limit the number of requests for admission a party can send.
Requests for Physical Inspection: In some injury cases, as well as cases alleging damages to property, or physical items, an accused party may have the right to inspect the injury or damages. In the personal injury context, an injured party may have to submit to a defendant’s medical examination. In the real estate context, a party may have to allow the other party onto the property to inspect the premises.
When a discovery dispute arises, which you can rest assured almost always happens, the court will serve as the arbiter of the dispute if the parties cannot resolve it on their own. Disputes can arise for many reasons, but are most frequently due to either a discovery request that wasn’t responded to at all due to an objection, or when a provided response is alleged to be insufficient or incomplete.
To resolve discovery disputes, the parties document their perspective on the dispute, perform legal research as to how prior courts handled similar disputes, then file written motions with the court requesting a ruling in their favor.