Legal: What is Discovery?

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Discovery is a legal process to exchange evidence in a lawsuit. To build your case, you need to know what claims the other party intends to make, as well as the evidence they have, like witness names and relevant documents. Different types of discovery requests allow you to seek this information.

Justice is said to be blind, but every stage of a lawsuit depends on finding and reviewing evidence. The legal process called discovery is a set of various rules and procedures that allow one party to obtain facts, documents, testimony and other types of evidence necesssary to prepare a case. The best way to get an overview of discovery is to read up on the types of legal discovery options available.

Discovery: The Door to Discovering Evidence

Whether you're in the middle of a divorce, suing someone for breaking a contract or accused of a crime, you need evidence to prove your case. In the movies, it's often an intrepid investigator or a sneaky private detective that finds the hidden bank account or cell phone video. But in real life, it's more likely to be "discovered" through the legal discovery process.

In every state, a person involved in a lawsuit has the right to seek discovery, that is, to send a legal document to other parties or even third persons who may have relevant information. The person must answer the civil or criminal discovery request within the legal time frame, usually 30 days, or else object to the request. If they don't answer, they can be held in contempt of court.

Common Types of Legal Discovery

Many types of legal discovery are available, some more common than others. Each has its own purpose. The most common are:

  • Requests for admissions.
  • Interrogatories.
  • Requests for production of document or things.
  • Depositions of parties or witnesses.

Requests for Admissions

Requests for admissions are exactly what they sound like: requests for another party to the lawsuit to either admit or deny a list of statements. For example, in a slip-and-fall injury suit, you might ask the other party to admit that she was the owner of the property where the injury occurred.

The possible answers to a request for admissions are: admit or deny. If part of the statement is true and part untrue, the party can admit what is true and deny what isn't. It's also possible for the party to state that she cannot admit or deny the statement because she doesn't have enough information to do so.

The Use of Written Interrogatories

Interrogatories are written questions that you send to another party. They must be prepared in a format approved by the court. This type of discovery request lets you ask who, what, when, where and why questions. The responding party has to answer under penalty of perjury.

There are two types of interrogatories, form and special. Form interrogatories are prepared forms that set out common questions for a particular type of lawsuit. You fill in your case information, then check off the boxes for the questions you want to ask. Special interrogatories are more specific, customized questions that you draft yourself.

Request for Production

If you want to look at someone's financial records, calendar, gun license or shoe collection, the discovery method to accomplish this is called a request for production. Using this, you ask the other side to let you inspect certain documents or things.

If you ask to see documents, the other party can copy the documents or allow you to view the originals. Requests for production can also be used to look at physical evidence in the other party's control to test, measure or photograph it.

Oral Depositions Before a Court Reporter

All of the forms of discovery discussed thus far are relatively inexpensive. You draft the legal discovery questions in the proper format and you get written answers signed under oath or you get permission to inspect certain physical evidence. Depositions are much more expensive since they involve personally taking the oral statements of a party to the lawsuit or someone who is not a party, but who has information relevant to the case.

You take a deposition to learn what a person knows, but also to see what kind of a witness they will make at trial. It is possible to take written depositions, but oral depositions are preferred as they allow follow-up questions based on the witness' testimony.

Depositions are expensive because they can take hours or even several days, and every question, answer and comment must be recorded by a neutral court reporter. The recording must then be transcribed by that neutral reporter to be certain that it reflects exactly what was said and by whom. The party taking the deposition pays for both of these services.

Other Types of Discovery

There are other types of civil and criminal discovery requests a party can make at trial as they try to gather evidence for their case. Some are unique to a particular state, while others, like a request for exchange of expert information, are allowed in all jurisdictions.

In cases where the parties plan to rely on experts to testify, for example, in medical malpractice cases, either side can file a demand for an exchange of expert witness information any time after a trial date is set. Once any party makes this discovery demand, all parties must disclose their expert witness information to all other parties in the case on the date specified in the exchange request.

Enforcing Discovery Requests

It's all very well for one party to ask the other parties in a lawsuit for answers or information. But what if the party doesn't respond? Or responds in a way designed to be unhelpful and hide the facts?

Needless to say, this is not an unusual situation. State laws allow a party seeking legal discovery to use a motion to compel other parties to respond to discovery requests. In this type of motion, you set out the situation, then ask the court to compel the other party to provide full responses.

Sometimes just the threat of a motion to compel is sufficient to make a party file a more complete response or schedule a deposition. Often, however, parties have very different thoughts on which questions are fair and which are overly broad or off-topic, and a judge has to step in to resolve this.

Motion to Compel Discovery

Each state has its own rules and procedures about how to file a motion to compel discovery. California's rules are typical: If the other party doesn't answer a set of requests for admissions, interrogatories or production requests, you file a motion to compel a response. If the other party does file answers to your discovery requests, but they are incomplete, you can file a motion to compel further answers.

For example, before you file a motion to compel discovery in California, you have to try to work things out informally with the other party. This is called meet and confer, and it's used to show the court that you've made a reasonable attempt to resolve matters. Most of the time, you meet and confer by writing a letter to the other side noting that the deadline to respond has passed and setting a future date to respond, after which you will file a motion to compel.

It's worth your while to try to resolve things informally, since a motion to compel takes time and effort to put together. You don't just write a short note to the court. Rather, as with all motions in California, you have to file these four legal documents:

  • Notice of Motion.
  • Motion.
  • Points and Authorities in Support of the Motion.
  • Declaration in Support of the Motion.  

You'll need to schedule a court hearing date on the motion to compel discovery, file the papers with the court and provide the other party with copies. There are strict deadlines in California for how far in advance of the hearing date you must file and serve the documents.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.