Discovery

Discovery is the method of obtaining information needed for trial. Each side has an opportunty to compel all other parties to produce information which may help prepare his case. Under the federal rules of civil procedure, applicable to federal courts, parties must exchange certain information automatically at the early stages of the litigation. No request is required. In many state courts, however, discovery proceeds upon formal documents requesting a particular form of discovery. No court order is required to force discovery. Under the rules of procedure, a party merely serves the appropriate document on the other, requiring a response. If the request improperly seeks non-discoverable information, the recipient responds with a formal written objection. Upon that objection, discovery does not proceed with respect to that particular matter until resolved by the court or by agreement of the parties.

Here is a brief description of the types of formal discovery:

• Interrogatories: Interrogatories are written questions which must be answered by a party under oath. For example, "state the name, address and phone of all persons who witnessed the collission....."

• Requests for Admission: Requests for Admission are, in essence, true or false interrogatories. The party must admit the truth or falsity of an assertion, or state a particular reason why the assertion may not be admitted. An admission takes an issue out of the lawsuit. If the defendant admits that the bus was going 50 miles an hour, that prevents the defendant from later asserting something different, without special permission from the court. A Request for Admission is a powerful device to simplify a case by limiting the facts and issues under dispute. Often, lawyers will seek admissions of the authenticity of documents, to avoid wasting time at trial laying foundation.

• Depositions. In a deposition, a lawyer takes the testimony of a party or a non-party. A deposition differs from most forms of discovery, in that it may be directed to non-parties. A lawyer may compel the attendance of a party merely by serving (mailing) a notice of deposition designating the date, time and place of deposition. One compels the attendance of a non-party witness by serving (by process server) a subpoena.

• More about depositions: A deposition requires a witness to testify under oath. All parties' lawyers may ask questions. The deposition typically takes place in a lawyers conference room. A court reporter transcribes the testimony. Afterwards, the court reporter creates a deposition transcript; the witness may review the transcript and correct inaccuracies in transcription. The lawyers may show the witness documents or other exhibits and inquire regarding their authenticity or their meaning. When a witness testifies in court, the judge referees and prevents parties from asking unfair or inappropriate questions. A deposition has no referee. Instead, a party's own lawyer interposes objections, and in some case instructs his client not to answer. If the parties themselves cannot resolve a dispute, they may bring a motion later, or in some cases, may try to reach the judge on the telephone for an immediate ruling.

• Request for Production of Documents. A party may demand that another party must produce documents which may provide relevent information.

• Inspection of land or other items. A party may gain the right to inspect physical evidence.

What information can a party be required to provide. The scope of discovery is broader than the scope of admissable evidence. A party may discover information which might lead to evidence: the names of people who know something, documents which might lead to other documents, even hearsay. Discovery allows attorneys to find admissible evidence. The courts allow considerable lattitude in discovery, but will place constraints on discovery that seems abusive. In addition, discovery must honor traditional privileges: lawyer-client, doctor-patient, and the privilege against self-incrimination.