While most people have likely heard of the term “discovery” in the legal context, many may not know what it really entails. In a litigation or personal injury case, discovery is arguably the most important part of the legal process, and allows the parties to a lawsuit to find information that may not have normally been available outside of the suit itself.
What Information is Included in Discovery?
Discovery is the process by which parties in a legal proceeding may find certain “discoverable” information from the other parties. This usually means an exchange of information including documents, emails, text messages, and actual testimony from witnesses. The purpose of this process is to allow parties to a lawsuit to obtain information they may not have at their own disposal, such as inter-office emails, files kept in storage for a company, or any other information only one party may have. This allows all parties involved to have the same access to the same set of facts and information to make their argument before the court.
The first step in the discovery process is usually interrogatories and notices to produce. Interrogatories are questions asked by one party of the other party that relates to the case. This could include anything from simple questions to complex, as long as they are in relation to the incident. The deadline to respond to interrogatories is usually within 60 days after service of the request. Notices to produce are very similar to interrogatories, and often sent at the same time. Notices to produce are requests for documents held by one party, such as leases, contracts, or communications. The deadline to respond to a notice to produce is usually within 60 days after service of the initial notice.
After interrogatories and notices to produce often come admissions. Admissions are a list of facts drafted by one side in the form of “true” or “denied.” Unanswered questions are considered admitted, so admissions can often be used to attack a parties allegations or defenses.
Depositions very often take place after interrogatories and notices to produce. Depositions are interviews, under oath, where each party has the opportunity to ask a witness questions regarding the case. Depositions are normally used as a vehicle to clarify certain statements that were made in the interrogatories or admissions, or to ask specific questions about documents that have been disclosed. This is often the most important step in the discovery process, as it allows attorneys the opportunity to get more in depth and detailed information from a witness.
Finally, expert reports and depositions often take place towards the end of the discovery process. Experts are professional witnesses, such as an engineer or doctor, who can testify as to their professional opinion of a specific case. This often comes into play when a lay person may not understand the nuances of a specific issue, and would need an expert in the field to explain it in better detail. More often than not, if one party retains an expert, the other party will retain an expert for the purposes of rebutting the first party’s witness.
Objections in Discovery
If you have ever seen an episode of Law and Order, or even My Cousin Vinny, you have likely seen an attorney say “objection” met with either a “sustained” or “overruled.” While that may be the case when the parties are in front of a judge, what happens when there is an objection in discovery? The parties should not have to go to the judge for every minor dispute. Instead, the parties note the objection, respond to the question, and will bring all of the objections to the judge at once should the parties make it to trial. This saves the court and the parties time, as there is no incessant arguing over what is or is not admissible, while preserving the parties’ objections for a later date.
What Happens if Information is Not Turned Over?
Generally, any information that is requested from a party who has access to that information must turn it over to the requesting party. Lying on interrogatories, failing to disclose information when requested, or even failing to adhere to the deadlines imposed by the court could result in some hefty consequences. This can include sanctions against the offending party, instruction that the non-disclosed information should be considered detrimental to the offending party and, in some severe cases, suppression of the pleadings of the offending party. This suppression essentially means if the plaintiff fails to comply with discovery, their complaint may be removed from the docket. If the defendant fails to comply, their answer may be removed from the docket. This leaves a plaintiff at risk of dismissal, or a defendant at risk of default.
CONCLUSION
It is very important to understand the many nuances and deadlines imposed in the discovery process. Contact an experienced litigation attorney today to get started.
