This article will take you through what happens in a civil case during discovery.
Key Takeaways:
What is Discovery in Court?
Discovery in law refers to a phase that takes place between the submission of the parties’ initial filings and the trial. During discovery, both parties gather evidence to prepare to make their case. The reason for discovery is to allow both sides to better understand their case and whether it is advisable to proceed to trial. This prevents surprises during trials and ensures honesty and transparency.
Civil discovery is broad in scope, encompassing any information relevant to the claims or defenses in a case. Failure to comply with discovery can result in fines or even dismissal of your case.
Methods of Discovery in Law
Interrogatories
Interrogatories are a common form of written discovery. An interrogatory question is aimed at either an opposing party or a relevant third party regarding an issue in the case. The responses to these questions are under oath, meaning they are admissible in court and potentially binding for the party answering the interrogatories.
Interrogatories are important when a party needs a nice, clean response from either the other side or from a key witness in a case. They are a straightforward, cost-effective tool and are usually a part of any litigation that reaches the discovery phase. They provide a foundation upon which other discovery methods can build.
Depositions
A deposition involves interviewing a witness under oath. Think of it as putting someone on the stand, but outside of the courtroom. Depositions provide the opportunity for both parties to flesh out the testimony of a particular witness, and go much deeper into the details of the case. The real-time interaction allows the interviewer to uncover new information that they may not have otherwise gotten from a written answer. Depositions also allow the court to determine the credibility of certain witnesses better than just reciting the answers to the same questions asked via an interrogatory.
Request for Production
Sometimes, one party needs something from the other to make their case. Whether it be call logs, an insurance policy, or surveillance camera footage, a request for production can be used to force one party to turn over evidence to the other. Requests for production differ from interrogatories as they are solely searching for tangible evidence rather than written answers. If one party feels as if the other is not being forthright or failing to otherwise respond to a request for production, that party can file a motion to compel discovery to force the other side to comply.
Requests for Admission
Sometimes, a party has the evidence they need to make their case, it’s just a matter of introducing said evidence into the record. A request for admission can do just that. The opposing party can of course object to the request for admission, but this will require filing a motion with the court. Requests for admission can help narrow down the issues in a case by allowing the parties to know ahead of time which facts will be admitted or denied.
Subpoenas
A subpoena is a legal order to compel production from a party or testimony from a witness. Subpoenas are a tool to pursue evidence from nonparties.
Request to Inspect
Sometimes, a party just wants brief access to a document or a set of documents in order to complete their discovery. Other times, a dispute will involve what condition a property is in, or what conditions exist at a particular property. A request to inspect can be used for either of these. A request to inspect property allows for one party to gain access to the property of either an opposing party or of some other location relevant to the lawsuit. A request to inspect documents allows for one party to briefly inspect sensitive documents held by another party that are not otherwise transmissible.
Motion Practice in Discovery
A critical portion of discovery is motion practice. Legal motions can shift the course of discovery to determine what will and will not be admitted into the case. Disputes during discovery are often resolved through motions.
Motion to Compel
As discussed above, sometimes a party refuses to cooperate with the discovery process. In cases where interrogatories or requests for production have gone unanswered, a motion to compel can be used to force the other side to cooperate.
Protective Order
Oftentimes, parties will have sensitive information in their possession that, while not relevant to the case, may get swept up in the course of exchanging discovery. A protective order can be used to avoid forcing a party to reveal confidential and protected information. Protective orders can be highly contested, as one party may accuse another of trying to hide relevant information behind the protective order.
The Discovery Timeline
Once the parties have filed their initial pleadings, the judge will often convene what is known as a case management conference, or CMC. At the CMC, the judge will lay out the schedule for discovery. Subject to change, this schedule will most likely divide discovery into two phases, written discovery and oral discovery. Written discovery (interrogatories, requests for production, requests for admission) is rather straightforward and lays the groundwork for oral discovery. Oral discovery mostly takes the form of depositions.
Discovery is a volatile and time-consuming process. Both parties will use whatever tools at their disposal to determine what evidence does or does not go into the case. Discovery in law can be the difference between winning and losing a case. As a result, both parties are incentivized to take as much time as possible in order to complete discovery. While an initial case management conference can set the timeline for discovery at several months, the actual process can take years depending on the size of the case, the relevant facts at issue, and the number of documents involved.
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