What Is Civil Discovery?

Most civil cases are often resolved after discovery, where all parties know each other’s strengths and weaknesses, resulting in a settlement.

Discovery Can Lead to Admissible Evidence

Under United States law, the discovery process is not only for collecting relevant evidence but facts, materials, and testimonies that may not be directly related to the case but can assist in discovering relevant, admissible evidence.

However, the law protects the availability of certain types of information, including privileged information, husband and wife conversations, and trade secrets. Certain information, such as juvenile criminal records and certain medical records, may be protected depending on the type of case.

The following are some of the common types of discovery devices:

• Requests for admissions: As the name implies, requests for admissions ask other parties involved in the civil litigation to admit or reject allegations to allow the case to focus on what is truly in dispute. Although the original document to start a lawsuit requires the other party to admit or deny allegations, requests for admissions help attorneys dive deeper to help them draw on certain reasonable inferences.

• Interrogatories: Unlike requests for admissions, where one party asks the other party carefully worded written questions, interrogatories focus more on open-ended questions, helping the attorney gather as much information as possible for the trial. These are often in the form of written questions sent by one party to the other. Interrogatories can become complicated, so certain states limit the number of interrogatories a party can ask. For example, you may not send more than 30 specially prepared interrogatories in Florida or 35 in California.

• Requests for production: Considered to be a valuable tool in litigation, requests for production sent to one party requires them to produce documents (bank statements, pay stubs, and more) or other tangible evidence. This process allows attorneys to access physical documents they can use in a trial. An attorney can also give a subpoena to non-parties to request certain physical evidence or records. In case non-parties object to discovery requests, the requesting party can seek assistance from the court.

• Oral depositions: This process or oral examination occurs before trial, where one party asks the opposing party live questions, requiring answers, typically under oath, before a court reporter. The court reporter takes down everything and produces a written transcript. Depositions usually occur at an attorney’s office without the judge’s presence. An attorney can bring anything said in the deposition to the court during trials.

Parties can obtain discovery of information in two types of format, physical or electronically stored information (also known as electronic discovery).

Another crucial point to remember is that the Federal Rules of Civil Procedure (FRCP) guide the discovery procedures at the federal level. At the same time, the state courts follow a similar version based on the FRCP.

Criticisms of the Discovery Process: Discovery Rules Favor the Wealthier Side

Like attrition warfare, many believe that discovery enables parties to drain each other’s financial resources, favoring the wealthy side in the end.

The discovery process in the United States aims to level the playing field. Instead, the rules create a multi-level playing field. These rules encourage lawyers to manipulate or conceal information.

There are many such instances where:

• One party’s request for information can become expensive and time-consuming for the other.
• A party responds to an information request by sending in thousands of documents that may not have anything to do with the case.
• A party files a request for a protective order to prevent the deposition of key witnesses.

The above are a few examples of how one party can burden the other to deplete their financial resources and demotivate them.

Do You Need an Attorney for Discovery Process?

Discovery is a complex process, and hiring a qualified attorney can help. Small cases generally have little to no discovery, while some parts of a civil case can be more time-consuming, complex, and significantly crucial to the lawsuit’s outcome than discovery. If you’re unsure whether your case warrants a discovery, contact us at (833) LETS-SUE for a free consultation with our legal experts.