Discovery is one of the major phases of courtroom litigation, although it takes place before the case goes to trial. In the American legal system, disputes are to be resolved based on the facts and the law, rather than by gamesmanship or surprise. Therefore, each party is required to disclose all relevant facts and evidence to the opposing party before trial begins.
This is more than subpoena powers. While each party does have the power to subpoena specific items from the other party, the discovery process requires more. It requires the good faith participation of each party in the voluntary disclosure of the items requested, even when the request is for broad categories of information that may not even be fully known to the party requesting it.
Depending on the circumstances, discovery can itself become disputed. Whether the other party is being truly responsive may come into question, as may the details of what must be disclosed. Managing the discovery process is one of the most important tasks trial lawyers handle.
The three main forms of discovery
Generally, discovery begins with written questions, called “interrogatories” and requests for admission. These are meant to elicit specific information about the dispute in question. The possibilities for interrogatories are limited only by the fairness and relevance of the question. An example of an interrogatory might be “what happened on the day Mr. Thomas was injured?”
Requests for admission are just that — they ask the opposing party to simply admit certain facts where there is no real dispute. For example, one party might ask the other to admit, for example, that their business is incorporated in the state of Texas.
Requests for document production are another main form of discovery. One party asks the other for items such as contracts, incident reports, emails and memoranda related to the case. In general, the party has the right to any relevant material, but disputes often arise about whether otherwise private material is relevant and must be turned over. Document production also includes electronic files and, in some unusual cases, the reconstruction of deleted files.
The final way to obtain the facts about a given dispute is the deposition. At its essence, this is sworn testimony that is taken outside of the courtroom before trial. A deposition can be held at any private location and usually involve a witness, the lawyers for the parties and a court reporter.
Taking a deposition is important for three main reasons:
- It provides details about the dispute that the other side may not have
- It gives a sense of how well the witness would perform on the stand
- It provides a record, locking the witness into their story so they can’t change it at trial
What to do if you are involved in the discovery process
If you are involved in a lawsuit, there is a good chance you will be required to respond to interrogatories or requests for admission, to produce documents, or to provide a deposition. Your job is to answer honestly and strictly accurately and to avoid giving explanations or extraneous information.
While your lawyer should never coach your responses or testimony, he or she may work with you to ensure your answers are fully responsive and don’t include information that is not relevant.
As always, be completely honest with your attorney about the information you have and all the circumstances surrounding your case. Withholding information can make it harder for your attorney to his or her job, and it is likely that the information will come out during the litigation process.