Discovery in Civil Litigation

A “search for the truth” is the idea behind the discovery phase of civil law suits.

Hollywood keeps movie viewers in suspense, telling a tale but holding back on a final nugget of truth until a secret witness shows up in court at the end revealing “the truth”. Forget all that. In the real word, in civil cases such as personal injury and other claims, once a case is filed, it enters the discovery phase of litigation.

Court rules govern what happens in discovery. The rules require parties to disclose basic information. The information is sought through tools of discovery.

What are the Main Discovery Tools?

1. Interrogatories

Interrogatories are a list of written questions. Parties to litigation must answer the questions in writing, under oath. Different jurisdictions place varying limits on how many questions may be asked.

2. Requests for Production

Those involved in litigation can ask for copies of documents, including photos, drawings and diagrams. This rule also allows inspection of places and things such as a property where an accident took place or a machine that caused injury. Such requests usually result in working out a date and time for inspection. Most often these requests require production of piles of documents and photographs.

3. Depositions

In a deposition, attorneys ask opposing parties and witnesses innumerable questions, under oath. A stenographer documents every word and produces a printed transcript. In another article I’ve described depositions in more detail.

4. Requests for Admissions

Requests for admission focus on individual facts and issues, forcing the other side to admit or deny specific points. The light was red. You got a traffic ticket. The other alternative, only if in good faith, is to say you don’t have enough information to admit or deny. This effectively acts as a denial. But, the other side can receive an award for costs incurred in proving a denied issue.

5. Subpoenas

Subpoenas issue with the authority of the court commanding the properly served recipient to appear at trial or in an attorney’s office for questioning. Subpoenas also seek production of business records, medical charts or other documents. Proper issuance of a subpoena requires compliance with technical requirements in the rules of each court.

How Far Can Discovery Go?

Parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the case. Privileges generally include attorney-client, work product, husband-wife communications and some others.

But, discovery rules define “relevant” broadly. The legal standard for allowable discovery is anything reasonably calculated to lead to the discovery of evidence admissible at trial.

Where discovery presents “annoyance, embarrassment oppression or undue burden or expense” the rules authorize protective orders. But, courts expect attorneys to attempt to resolve discovery disputes amongst themselves before filing motions over such broadly defined offenses. The loser of a motion can be ordered to pay attorney fees to opposing counsel and may incur other sanctions.

Discovery Issues

Federal Rules of Civil Procedure apply in Federal Courts. State courts adopt their own rules, which differ widely. Some discovery obligations are “automatic”. This means information listed in the automatic discovery rules must be disclosed to the other side within a specified time even though they haven’t asked.

The discovery phase of litigation consumes time. For whatever reason, rules change from time to time. This summary outlines the overall process. More specific complications often prolong the “search for truth”.

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