During a criminal or civil court case, each party tries to gather as much evidence to win or settle the case in their favor. One way to do that is during the discovery process.

Discovery is a formal process in which parties to a case receive information from the other side to help support their arguments for the case.

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 details and evidence for the trial, discovery lets each party learn the strengths and weaknesses of their case. Information produced or acquired during discovery can lead to a settlement, eliminating the need for a trial.

Each state has its own discovery rules, but most are modeled after the Federal Rule of Civil Procedure 26. Each side can look into any matter pertinent to the case, except that which is privileged.

These matters can include the custody or location of:

  • Books,
  • Documents,
  • Physical things, or
  • Identity of a person.

What Is a Privileged Communication?

A privileged communication has all three of the elements below:

  1. A communication made thinking other people would not see it,
  2. Communication is considered confidential by law, such as advice from a doctor or conversations between spouses.
  3. You did not make the communication with other individuals.

A few other communications may be considered privileged. Testimony from the discovery that amounts to self-incrimination may be excluded. Testimony that may endanger the public interest is also regarded as privileged communication.

What Are the Tools in Discovery?

Lawyers and courts use these basic tools to conduct discovery:

Depositions
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 normally has a court reporter present as a court representative. The deposition usually takes place at the court reporter’s office or one of the law firms representing a party to the case.

Depositions serve two purposes: To record the recollection of witnesses while the memories are still current and to give all sides of a case a fair preview of the evidence likely presented at the trial.

Interrogatories
An interrogatory is a written letter to the other side in a case, asking them to answer a question. Interrogatories are generally between 25 to 35 questions, depending on the state. Although most interrogatories are expected to be tailored to each case, many of the questions are generic enough to be copied from case to case.

For instance, in personal injury cases, 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 that can be admitted, denied, or objected to. Like interrogatories, requests for admissions are typically limited to around 30 questions. Unlike interrogatories, requests for admissions usually come in the form of true or false questions. Requests for admissions presented to the court are assumed to be factual unless the judge permits the requests to be withdrawn or amended.

What Is a Civil Court?

A civil court is a court of law that handles various civil cases. The purpose of civil court is to hear civil cases. It does not hear criminal cases.

A civil lawsuit is filed in a civil court. It involves an individual or plaintiff filing a complaint against another individual or defendant whom they feel has injured them or caused them property damage.

A plaintiff in a civil lawsuit usually requests damages or monetary payment. Alternatively, they may be seeking equitable damages, such as an injunction or a court order instructing the defendant to take some action or cease an action. For instance, if an individual is involved in a car accident, they may file a civil lawsuit in a civil court under personal injury laws. They may seek compensation for damage to their car, medical costs, lost wages, and other expenses.

What Types of Claims and Disputes Do Civil Courts Review?

There are several different types of claims and disputes that civil courts handle. These include legal matters in areas of law such as:

  • Personal injury;
  • Family law;
  • Property and real estate;
  • Contracts;
  • Business; and
  • Intellectual property disputes.

How Are Civil Courts Different from a Criminal Court?

Civil court cases and criminal court cases are distinct in many ways. The regulations, punishments, and the burdens of proof are different in both court systems.

In civil lawsuits, people or organizations bring each other to court. These cases often involve a conflict of some sort. The penalties generally involve financial or property compensation. The right to a jury trial is not guaranteed in civil cases that seek an equitable remedy.

In criminal cases, law enforcement brings the case to either federal or state. The government brings a case against an individual and carries the burden of proof. Penalties can vary widely and by jurisdiction. The Sixth Amendment guarantees the right to a jury trial in criminal cases.

The burden of proof in the two types of cases is also distinct. In a civil case, the elements of the case must be established by a preponderance of the evidence. This is often described as when 51% of the evidence points to one party being right.

The elements must be established beyond a reasonable doubt to find a defendant guilty in a criminal case. In other words, there can be no reasonable uncertainty of guilt. This is considered to be a higher burden of proof.

The legal consequences are also distinct in civil and criminal cases. Civil cases normally result in monetary damages or an injunction. Criminal cases usually involve jail time and criminal fines.

There are constitutional protections afforded to defendants in criminal cases that are not always applicable in civil court. This includes the right to have an attorney appointed in criminal cases.

There are also some types of violations that can be tried in civil court and the criminal court under both laws. For instance, there are criminal assault laws and civil assault laws.

In some circumstances, a civil lawsuit may follow a criminal case. For instance, if individuals are found not guilty of murder, they may still be found liable in a wrongful death case.

What Is a Request for Production?

A request for production is one way that parties can get evidence during the discovery process. When served with the request, the other party is bound to find all of the documents listed in the request within reason. Then, the party must send them to the other party unless an exception applies and the party is not required to deliver the requested documents.

What Does a Request for Production Look Like?

A request for production typically includes several numbered, separate requests asking for specific documents. The terminology used in the request is broad, so the other party can receive as many documents as possible. For example, a defense lawyer in a personal injury case may request all documents related to insurance to receive every insurance document.

What Are Some Exceptions to Fulfilling a Request for Production?

Several exceptions would allow a party not to fulfill a request for production. These exceptions include:

  • Privilege: The information contained in the documents is subject to a privilege, such as a doctor-patient privilege or a spousal privilege.
  • Impossibility: The request for production requests extremely hard or impossible documents to obtain.
  • Too Broad: The request for production is too unclear or too expansive that the effort to gather all of the documents would far exceed any value that the documents would give to the requesting party.

What If I Do Not Want to Comply with the Request for Production?

If you fail to respond to the request for production appropriately, the other party can file a motion to compel with the court. If granted, the court will summon you to complete the request for production of documents or face contempt of court. If you are found in contempt of court, you may face jail time or a fine.

What Is a Subpoena Duces Tecum?

A subpoena duces tecum is a subpoena to produce documents. A court may give a person who is not a party to the case this type of subpoena to order them to bring documents to the court.

Should I Contact an Attorney Regarding a Request for Production?

It is essential to comprehend what documents the other party requests and how long you have to comply. Therefore, it is essential to talk with an attorney about any request you receive.