Discovery is a way for parties to a lawsuit to get evidence for their cases from each other as well as from other people. Court rules set forth different ways to ask for the information you need. These include interrogatories, requests for production of documents, requests for admissions and depositions. You don't file the discovery documents with the court until a disagreement arises between you and the other party about what needs to be answered.
Interrogatories are sets of written questions that the other side must answer. Use form interrogatories if your state courts offer them. Alternatively, write up the questions yourself, keeping the rules in mind about the kinds and number of questions you can ask. Many jurisdictions limit the number of interrogatories you can ask per set. For example, the limit in federal court is 25. Check your state's rules before you begin. You "file" the requests by mailing them to the other side's attorney.
Production of Documents
If the other party has documents or items that relate to the case, you can see them by sending a request for production of documents. In the request, describe in detail each item you want to look at and specify a reasonable time, place and manner to look at them. If people who are not parties have the documents, obtain a subpoena requiring production of those documents from your attorney or the court clerk. Personally hand each person named in a subpoena a copy of the document. Generally, you must also mail a copy to the other parties.
Requests for Admissions
A discovery tool called request for admissions can reduce the issues you have to prove at trial. You write out a list of "facts" and ask the other party to admit them. The requests can also include the application of law to fact or the genuineness of any documents. List one fact to be admitted for each numbered item. If you list two or more facts per numbered item, the opposing party may deny the entire item even though one or more parts may be true. To get the ball rolling, you mail a copy of these to the other side's attorney.
Depositions are question-and-answer sessions, usually done orally and in person. Deposing a witness is a great way to find out what she has to say at trial and whether she is believable. It is also the preferred way to discover an expert's opinions and what they are based on. If you want to depose someone, you must give reasonable written notice to the person who will be deposed as well as the attorney for the other side. You set the time and place for the deposition and arrange for a court reporter to administer the oath to the witness and transcribe every word spoken at the deposition.
Don't File in Court
There's no need to file your discovery documents in court unless and until you have a fight about them with the other side. To proceed with discovery, you only need to mail the interrogatories, requests for production of documents and requests for admissions directly to the attorney of the other party. If the witness refuses to answer questions or the other side objects to the scope of your discovery, you can take the issue before the court. At that point, you would file copies of the questions and answers at issue with the court as part of a motion to compel. In addition, discovery responses become part of the evidence of the case and can be used to support motions at trial.
- California Courts: Browse All Forms - Discovery
- The Philadelphia Courts, First Judicial District of Pennsylvania: Forms Center
- Cornell University Law School, Legal Information Institute: Federal Rules of Civil Procedure, Rule 33 - Interrogatories to Parties
- Massachusetts Court System: Civil Procedure Rule 33 - Interrogatories to Parties
- Cornell University Law School, Legal Information Institute: Federal Rules of Civil Procedure, Rule 34 - Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
- Cornell University Law School, Legal Information Institute: Federal Rules of Civil Procedure, Rule 45 - Subpoena
- Cornell University Law School, Legal Information Institute: Federal Rules of Civil Procedure, Rule 36 - Requests for Admission
- Cornell University Law School, Legal Information Institute: Federal Rules of Civil Procedure, Rule 30 - Depositions by Oral Examination
- Massachusetts Court System: Civil Procedure Rule 5 - Service and Filing of Pleadings and Other Papers
- California Courts: California Civil Rules, Rule 3.250(a)
- Discovery: Theory, Practice, and Problems by Roger S. Haydock & David F. Herr (1983)
Eden Straten has extensive experience in the legal and educational fields. She holds a Juris Doctor from Boston University and has been licensed to practice law for more than 20 years.