Discovery is the fact-finding portion of a lawsuit, where each party makes requests to the other party to disclose important information, such as the names of witnesses, documents, the amount of damages the plaintiff will claim, and any other information that could be relevant to the litigation. This is a part of the litigation process that is done before the trial begins; thus, you rarely (if ever) see it on TV.
Ideally, discovery should be a simple and straightforward process whereby each party disseminates information to the other, but this is not always the case, and disputes are bound to arise. The rules of discovery in civil cases are governed by the Federal Rules of Civil Procedure (FRCP) Rules 26-37, which set out the scope of discovery, the methods that each party can use to obtain information from the other party, and remedies available if a party feels that a discovery request is improper.
The scope of discovery is very broad. The basic rule is that a party may obtain any information that is relevant to any issue in the lawsuit, as long as that information is not privileged or otherwise legally protected. What are these privileges and protections?
Privileged communications: There are several types of relationships in which the conversations between the two parties are deemed to be of absolute confidentiality and thus their contents are not discoverable. These privileges are husband/wife, lawyer/client, doctor/patient, and priest/penitent.
Limitations on frequency and extent: While the FRCP do not set a limit on the number of discovery requests each party is allowed to make, they do allow the court to impose limits on the parties if it appears that they are using discovery requests unreasonably.
Work product: Documents prepared in anticipation of litigation are known as “work product” and are not discoverable (except under exceptional circumstances).
The parties to a lawsuit are required to provide certain information to the other party without being asked. This includes:
A deposition is an in-person question and answer session between a party’s attorney and witnesses or anyone else who is deemed to possess relevant information about an issue in the litigation, regardless of whether they are a party to the litigation. Depositions are made under oath, on the record, and are taken before an officer designated by the court. When a deposition begins, the officer begins with an on-the-record statement that includes the officer’s name, time, date, and place of deposition, deponent’s name, administration of the oath by the officer and affirmation by the deponent, and the names of all persons present. The process is then very similar to the questioning of a witness at trial, complete with examination, cross-examination, and objections. FRCP Rule 30 limits the duration of depositions to one day of seven hours, while FRCP 31 limits the total number of depositions per side to 10.
Interrogatories are written sets of questions sent by one party to another party to ascertain information related to a lawsuit. Like depositions, they are also made under oath. Unlike depositions, they are strictly reserved for people who are parties to the litigation. A typical interrogatory might include such directives as:
The questions in interrogatories are usually answered by both the party to whom it is sent and his or her lawyer, with whom he or she is permitted to consult. FRCP Rule 33 governs interrogatories and limits them to 25 per party.
In addition to verbal and written statements from witnesses, a party may also request that the opposing party produces certain documents. The term “document” is interpreted very broadly by the courts to include writings, photographs, electronic documents, charts, graphs, drawings, and other physically tangible items. When one party requests a document, the other party must produce any and all documents that are relevant to the case.
An admission is a party’s affirmation that a fact is true or that a document is valid. Thus, a party can request that the other party admits certain facts or the genuineness of certain documents as a way to streamline the lawsuit by reducing the number of facts that must be proved at trial. For example, assume that there was an accident in which Party A’s blood alcohol level was determined to be .06, which is below the legal limit. Party A could request that Party B admit this fact so that the matter would not have to be proven later at trial. Any admissions under this rule are considered conclusive by the courts unless the admission is later withdrawn.
The scope of discovery is broad, but it can become quite complicated when either of the parties to a lawsuit objects to a discovery request by the other party. There are several reasons why a party might seek a protective order against a discovery request, including:
Because courts generally want to avoid getting mixed up in discovery battles, the party requesting a protective order against the other party’s discovery request must include a certification that they have in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.