In any type of civil lawsuit, each party usually needs to share vital information with the other party or parties during the course of the lawsuit. This process of sharing information among the parties to a lawsuit takes place before the trial and is known as “discovery.”
The discovery process is required in most state and federal courts. Each state has laws that regulate the discovery process, and federal courts have their own rules which apply to civil lawsuits in federal courts.
Whether discovery is available depends on the state and the court in which a lawsuit is filed. Most states assign civil lawsuits to different levels of its civil court system depending on the amount of money and the kind of legal dispute at issue in the case. In some courts in which the amount of money sought is subject to limits, discovery may not be available as follows:
- Small Claims Courts: In most states, small claims court is for cases in which the amount of money in dispute usually ranges from about $5,000 to $10,000 dollars. In these cases, discovery may be unavailable or may be subject to limitations.
- Lower Trial Courts: Some states also divide their regular civil trial courts into levels based on the amount of money that can be claimed in a lawsuit. This results in the establishment of trial courts that conduct full trials of cases that involve less serious issues or lesser amounts of money. Depending on the state’s laws and the type of case, discovery in these lower courts may be limited or may be available only with a court order;
- Regular Trial Courts: In a regular trial court, in which the amount that may be claimed in damages is subject only to a lower limit, but not an upper limit, complete discovery is generally available from the time the lawsuit is filed.
A person planning to file a civil lawsuit wants to consider the limitations on the amount of money that can be recovered in courts at various levels and whether discovery is or is not available in deciding on the court in which to file their lawsuit.
In courts in which a full discovery process is allowed, there are certain pieces of evidence and information that each party is required to share, and there are other items of evidence that are protected from sharing in discovery for a variety of reasons, e.g. the information is privileged or it is not relevant to the dispute at issue in the lawsuit.
If one party is unwilling to share information which must be shared with the other parties under the laws of discovery, the other party might consider filing a motion to compel the discovery. A motion to compel is basically a request by one party to the court asking that the court order the other party to produce certain evidence to which the party believes it is entitled.
What Does a Motion to Compel Cover?
A motion to compel might ask a court to order a party to respond to the following types of discovery requests:
- Production of Documents: A request for production of documents requires a party to produce documents that are relevant to the dispute at issue in the lawsuit. For example, in a personal injury lawsuit, the person who has been sued, the defendant in legal terminology, would have a right to receive copies of such documents as hospital bills, car repair bills, and other items related to the damages that the victim claims;
- Responses to Written Questions: Each party to the lawsuit has a right to submit written questions, called “interrogatories” to every other party. The other parties have an obligation to answer the questions posed honestly and completely, “under oath”. If a party should fail to respond to appropriate interrogatories, the party who submitted them can make a motion to compel the party to provide answers;
- Requests for Admissions: A request for admissions asks one of the parties to a lawsuit to admit or deny specific facts or claims. This is a way to narrow the issues that have to be addressed in a trial;
- Appearance at a Deposition: A deposition is where a party or other witness who has knowledge relevant to the dispute at issue appears in person to answer questions under oath from the attorneys for the parties. The attorney who wants to question a witness serves a notice on the attorney who represents the witness informing them of the date, time and place at which the deposition will take place.
- The attorney for the party whose witness must appear is then legally obligated to appear as specified in the notice or work out an alternative arrangement. If the witness does not appear and has not made alternative arrangements, the party who noticed the deposition may make a motion to compel the appearance of the witness at a deposition.
The party from whom the discovery is requested always has the opportunity to respond to a motion to compel. In its response, the party may argue that they should not have to respond to the request for discovery on the grounds that the material sought is subject to privilege, such as the attorney-client, spousal, doctor-patient and clergy-penitent privileges.
Or, the party may argue that the material or information sought is not relevant to the issues in the lawsuit. The motion to compel and any response are circulated among the attorneys for the parties in written form and filed with the court.
The court holds a hearing at which the parties appear and argue their respective positions on the motion. The court then decides the issue and may not compel the discovery sought because the court is persuaded by the arguments of the party who resists the discovery.
If a court does order a party to respond to a request for discovery in response to a motion to compel and the party disobeys the order, it can lead to consequences such as another, more serious court order, fines or fees or other procedural rulings that may even affect the outcome of a case.
When Can a Motion to Compel Be Filed?
A motion to compel is made when a request for discovery goes unanswered by the party who should respond to it. Or, if the party who is obligated to respond submits a response that is clearly inadequate, because it does not include all the information or material that the request and the law require the party to provide, a motion to compel can be filed.
Specifying a date or a deadline for response is part of every discovery request. If no response is made by the date specified, the party who made the request may file a motion to compel.
Once a complaint is filed and a lawsuit is underway, some states impose a period of time within which discovery can take place. Motions to compel would need to be filed within that period of time.
Other states do not impose any time limits on the discovery process, but there are always time limits on responding to particular requests for production of documents, interrogatories, requests for admissions and depositions. The standard deadline for responding to most discovery requests is 30 days. The experience of a lawyer is needed in all likelihood to handle the discovery process and any motions to compel that may be necessary.
Should I Hire a Lawyer if I Have Discovery Issues?
Discovery is a process that is part of all lawsuits filed in certain civil courts, both state and federal. Discovery is part of criminal cases as well, although it is different in criminal cases, because the nature of the evidence and rules are different.
In any event, whatever the type of civil lawsuit in which you are involved, discovery is going to be part of it. A trial attorney is one who specializes in taking civil cases to trial and is someone you can consult, if you are involved in a civil lawsuit.
But a personal injury attorney who represents you in whatever kind of civil suit, whether it is a personal injury case, a case for breach of contract, or a property case, should also be quite familiar with the discovery process and can enforce discovery requests with motions to compel.