If a lawsuit gets past its initial stages, the plaintiff and the defendant will go through a period of discovery. This involves asking the opposing party or other people to provide information that would not be publicly known or readily available to the party seeking it. Discovery allows each side to build evidence for their arguments at trial. It also can help narrow the case and streamline the process by focusing the litigation on the issues that are actually disputed. Generally, anything that is reasonably likely to lead to discoverable evidence can be sought through discovery.
Perhaps the classic example of a discovery tool is a deposition. This happens when either party asks the other party or a potential witness to answer questions under oath. The person being deposed usually will come to the office of the attorney for the party requesting the deposition. A private court reporter will make a record of the deposition. It can be a useful way to determine what a key witness will say at trial so that you can adjust your strategy accordingly. Also, if their statements at trial clash with their statements in the deposition, a party can use this conflict to impeach the witness’ credibility. Since you will be answering these questions under penalty of perjury, you should respond truthfully even if you suspect that the answers may harm your case.
Requests for Production of Documents
Each party can mail these written requests to the opponent or their attorney. They will seek documents or sets of documents that are relevant to the lawsuit. For example, if an employee is suing for racial discrimination, they may want access to the employer’s records to show that similarly performing employees of other races were treated better than they were.
Requests for Admissions
The plaintiff will tell a certain narrative in their complaint, while the defendant will outline their version of events in their answer. These stories are often not entirely different, and the parties may disagree on only a few key points. Requests for admissions are ways to narrow the dispute by identifying points on which the parties agree. This can make the litigation more efficient by limiting the evidence presented at trial to genuinely disputed matters. You should respond candidly to requests for admissions, since you will be answering under oath.
Interrogatories are written sets of questions sent by one side to the other. If the party answering the interrogatories has a different answer at trial, the other party can point this out to challenge their credibility.
Limits on Discovery
As noted above, discovery has a broad scope. Courts tend to interpret the rules governing the process generously. Failing to cooperate with a legitimate discovery request or tampering with discoverable evidence before disclosing it can result in sanctions. These may involve an instruction for a negative inference at trial or even the dismissal of a claim or counterclaim.
However, sometimes a party will abuse the discovery process by making extremely onerous requests that have minimal relevance to the litigation. They may hope that the other side will give up on the case rather than undertaking this burden. If you feel that your opponent is making unjustified discovery requests to harass you, you can object to the requests. The court will rule on whether all, part, or none of the requested materials must be made available to the opposing party.
In other situations, a party may request information that falls within the definition of an attorney’s work product. This is a term for an attorney’s analysis and ideas, as well as their strategic development of the case. Work product can take tangible or intangible forms. It generally does not need to be disclosed in discovery.