Nothing frustrates and derails a lawsuit like surprises, the sudden appearance of information that can swing the case unexpectedly. So, since the 1940s, the US federal court system has required all parties in a lawsuit to provide all possible relevant information about a case before trial. So what is discovery in law? It is the process of acquiring and disclosing the information in a lawsuit, and its purpose is to obtain evidence before you ever appear in front of a judge. See Rule 26(b)(1):
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Discovery is an investigation outside the court that brings out facts and documents that were unknown previously, using three main methods: document production, depositions, and written discovery.
We’ll look at these in more detail, but first, let’s explore the kind of information that lawyers look for during discovery.
What Information Should Lawyers Look for In Discovery?
This depends on each case, but the possibilities are pretty extensive. Parties may have to disclose the identities of people who might know about the case or to identify objects that may be relevant to the lawsuit, to inspect premises in which the case occurred, or to interview or gain access to people or businesses that aren’t directly related to the case but might offer context for the lawsuit.
However, there are limits to the type of information we can discover or use in a lawsuit, and these guidelines are meant to avoid exploitation by lawyers – many have sought out information that’s irrelevant to the case but embarrassing to the parties involved. Discovery limits us from using:
- Conversations legally recognized as confidential. These involve relationships between husband and wife, a lawyer and their client, a doctor and their patient, and a clergy member of a recognized religion and persons seeking counsel. Any information, whether verbal or written, exchanged between any of these parties is protected by law, and people cannot be talked into revealing it.
- Private information, but we must note that the definitions of the right to privacy are constantly evolving. In discovery, private information includes details about the party’s body issues or health, sexual practices or partners, spiritual beliefs, and relationships with their immediate family. Anything that isn’t directly relevant to the case and that the person wouldn’t disclose to anyone outside their closest relatives is deemed a private matter.
- For example, the privacy of third parties, colleagues, family members, or other witnesses may have relevant information to the case but may not want to give their testimonies in court. Dragging such third parties into the dispute can constitute a breach of their privacy.
- Sensitive information, such as insider information of a public company, trade secrets, or medical prescriptions of the key witnesses, would be detrimental to all parties involved if made public. In such a case, the information may be relevant, but the judge may note it as confidential and put it under a protective order, meaning that the parties who receive knowledge of this information must not disclose it outside of the court.
These limitations show us that not all information is fair game in a lawsuit, and different jurisdictions have their own rules about discovery. Additionally, the discovery process itself can be quite expensive because it takes lots of time and legal fees.
What are the Types of Discovery?
These are questions lawyers present to their clients about the claims in the dispute. The questions can follow a general format and be presented as a document or contain questions specific to the case. One party sends these questions to the other, and they must be answered under oath. A lawyer must be present to explain the questions if they appear to be unfair or too complex for the respondent to understand, and the respondent has the right to object to giving answers if they fall under private or sensitive information, as explained above. These answers are used in a trial during cross-examination to challenge any witnesses that change their story.
Read about how to write interrogatories.
Requests for Admission
These aren’t used as often as interrogatories but are compelling tools to ascertain the facts of the case. They’re essentially a true-or-false type of questioning where the party is asked to admit or deny certain facts relevant to the case, such as confirming that documents and signatures are genuine. Any false answers, late answers, or omitted answers carry penalties, but this is only to help the lawyers narrow down the issues that must go into the trial itself.
Read about how to write requests for admission.
Requests for Production of Documents
This type of discovery involves requesting the parties to provide pertinent documents related to the dispute, such as contracts, title deeds, employment records, proofs of residence, and so on. These documents can be heavy reading in cases of faulty products or medical malpractice and can also involve the reconstruction of deleted digital files such as emails. In cases where a professional must inspect the location of the dispute, such as an auditor checking the accounts of a business accused of embezzlement, that professional report can be requested in discovery.
Read about how to write requests for production.
This is a face-to-face type of discovery where a lawyer will ask the witnesses questions, and a court reporter transcribes the session. A deposition is a sworn statement that helps to clarify the dispute and can be used in a trial if the witness cannot appear in court. It can last anywhere from a few hours to a few weeks, depending on the dispute. Usually, a lawyer will practice a deposition session with their client if they anticipate that the opponent will result in this form of discovery. It also serves as a test to see how the client will behave before a judge or jury.
Read about the dirty dozen tricks for depositions.
Discovery is usually a long, frustrating, and occasionally intrusive process in which we arm ourselves to the teeth with as much information as we can get to win a case. Understand the opportunities and limitations of what is a discovery in law, and you’ll be well on your way to building your case.