Discovery is a part of a civil case before trial where both sides try to "discover" facts about the case held by the other side. Discovery is a crucial part of pre-trial preparation. In addition to gathering information and evidence for the trial, discovery also allows each party to learn the strengths and weaknesses of their case. Information produced or obtained during discovery can lead to a settlement, eliminating the need for a trial.
Each state has its own discovery rules, but most of them are modeled after the Federal Rule of Civil Procedure 26. Each side can look into any matter that is relevant to the case, except that which is privileged. These matters can include the custody or location of:
- Physical things, or
- Identity of a person.
What Is a Privileged Communication?
A privileged communication has all three of the elements below:
- Make a communication thinking it would not be seen by other people,
- The communication is considered confidential by law, such as advice from a doctor or conversations between spouses.
- You did not make the communication to other people.
A few other communications may be considered privileged. Testimony from discovery which amounts to self-incrimination may be excluded. Testimony which may endanger the public interest is also considered privilege communication.
What Are the Tools in Discovery?
Lawyers and courts use four basic tools to conduct discovery:
A deposition is when a witness to a case gives out-of-court testimony that will be put into writing and later used in court. A deposition typically has a court reporter present as a representative of the court. The deposition usually takes place at the office of the court reporter or at one of law firms representing a party to the case. Depositions serve two purposes: 1) To record the recollection of witnesses while the memories are still recent and 2) To give all sides of a case a fair preview of the evidence likely presented at the trial.
An interrogatory is a written letter to the other side in a case, asking them to answer a question. Interrogatories are between generally 25 to 35 questions, depending on the state. Although most interrogatories are expected to be tailored to each specific case, many of the questions are generic enough that they are copied from case to case. In personal injury cases, for example, the questions may be as simple as “Describe the nature and extent of your injuries” or “List the number and names of each physician you visited to treat your injuries”.
Request for Admissions
A request for admission is a written letter to the other side in a case, containing some fact which can be admitted, denied, or objected to. Like interrogatories, request for admissions are generally limited to around 30 questions. Unlike interrogatories, request for admissions usually come in the form of true or false questions. Request for admissions presented to the court are assumed to be factual unless the judge allows the requests to be withdrawn or amended.
Request for Production
A request for production is a written letter to the other side in a case, requesting specific books, documents, or physical things for inspection and copying. They are sometimes referred to as document requests, notices to produce, or demand for document inspections. Requests for production can also include certain electronic evidence, such as e-mails or hard drives. Requests can be denied if the requests would violate privileged communications. Parties presented with such requests can also respond and explain that the evidence requested is unavailable for certain reasons: for example, the documents were destroyed or the items in question are no longer in the party’s possession.
Do I Need an Attorney for Discovery?
If you have reached to point in a civil trial where discovery will occur, or you are asked to respond to any of the tools of discovery, it is highly suggested that you contact an attorney because they will be able to explain things to you and help protect your rights.