A lot of people who are involved in a legal matter might find themselves having to participate in a process referred to as “discovery.” Discovery is a process that opens after the initial pleadings are filed in a case. Discovery is the term used to refer to the process where both sides are empowered by law to ask the other side questions and for documents. The purpose of conducting discovery is to acquire information that is relevant to the allegations and legal claims made in the case. Each side has equal rights to conduct discovery, so there is a level playing field for the parties who are trying to obtain more information about the issues.
Refusal to participate in the discovery process will not only prolong the litigation but could also lead to the recalcitrant party being responsible for the attorney costs and fees the other party incurred while trying to obtain the information. While certain discovery requests could be objectionable due to privilege or it is outside the answering party’s ability to answer, most of the time, the respondent can answer and provide the information, so any refusal or objection must be concrete and specific. Courts tend not to have a lot of patience when one or both parties are conducting discovery attempts to play games with the system.
Discovery can be broken into two categories: written and oral discovery.
Key Takeaways
- Discovery is a legal process where both parties in a case can request relevant information and documents from each other to support their claims and defenses.
- Written discovery includes requests for admissions, production of documents, and interrogatories, which must be responded to accurately and promptly to avoid penalties.
- Oral discovery, primarily through depositions, involves sworn testimony and can include document requests, with failure to comply potentially resulting in severe penalties.
Written Discovery
There are three types of written discovery. Requests to admit or for admission, Requests for Production of Documents and Interrogatories.
Requests to Admit or For Admission
Different titles are used in different jurisdictions, but the end result is the same: you will be served with a list of statements that you must respond to. Typically, these statements will start out with “admit or deny that…” Failure to respond to a request to admit can be treated as an admission, so it is important that you reply to every request to admit. You must respond either “admit” or “deny” based on the facts of the situation and your own personal knowledge.
Requests for Production of Documents
Each party will provide the other side with a list of documents that they want to have copies of. Some examples of what could be requested are financial records, written communications, phone logs, and medical records. If a document exists and the party has access to it, the other side can ask that a copy be produced for them. A lot of the time, parties will try to fight the disclosure of financial or medical records, but if the documents are relevant to either the claims alleged or defenses made, they will usually have to be produced. Document production can become voluminous, so courts and attorneys will use something called a “bates stamp” to identify particular documents. If you see or hear a document produced in discovery referred to as “bates stamp number…” that is what it means: it is just a tracking system. Document production can take some time, so if you receive document requests, it is important that you begin working to gather the documents right away.
Interrogatories
Interrogatories are a list of questions that must be answered. Responses to interrogatories will be different than the ones you used for the requests to admit. In the requests to admit, you simply admit or deny. Interrogatories ask for more detailed answers, and a failure to answer fully will leave the door open for further questioning. It is important to object to any interrogatory that is improper, but the objections must be specific; both state and federal courts will not sustain a blanket or boilerplate objection.
An important note – there can be more than one round of written discovery. The parties can actually serve multiple rounds of written discovery on one another. Sometimes, additional rounds are required because the first set of discovery responses creates paths for further questioning. It is not that unusual for one or both sides to serve multiple rounds.
In addition to multiple rounds of written discovery being served, one or both sides may ask the other side to supplement their answers. If one party believes that the responses were incomplete, they can request in writing that the other side supplement. If the parties cannot resolve any discovery disagreements on their own, one or both sides may file a motion to compel, which will be decided by the judge, which will drive up costs and extend the litigation.
Oral Discovery
Depositions -Depositions are oral discovery and are not usually conducted until after at least one round of written discovery has been completed. There are two ways a party can typically be noticed for a deposition.
Standard deposition notice - the party is informed that a deposition has been scheduled and that they are required to appear pursuant to that state’s discovery statutes. The party will appear and be questioned by the other side, and their testimony will be taken by a court reporter. The party being deposed is sworn in, and their statements are subject to the same penalties for perjury that apply when a party gives sworn testimony in court. It is important that you only make honest statements when you are being deposed by others. A transcript of your deposition will be created by the court reporter, and the other side can bring it to the court hearing and compare your statements on the stand to the statements in your deposition transcript.
Subpoena Duces Tecum- the is also a deposition notice with a document request within in. If you are served with a subpoena duces tecum, you will be subject to a standard deposition, and the serving party will also request that you bring certain documents to the deposition with you. You can expect to give sworn testimony in front of a court reporter and also to answer questions about the documents you brought with you.
Failure to Appear – there are penalties for a failure to appear or a failure to produce documents when served with the subpoena. Each state has its own penalty according to statute, but it usually starts with monetary penalties and then, eventually, time in jail in some jurisdictions.
Discovery can be a stressful and time-consuming experience, but it is necessary in order to flesh out the case and any defenses. Active participation in the discovery process is required, and a failure to participate will only hurt you in the long run. Ideally, you will have an attorney to direct and guide you during any extensive discovery process.
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