Posted on Friday, August 23rd, 2024 at 2:28 pm
What is “discovery” in a civil lawsuit?
Discovery takes place during the pre-trial process—the phase between when the plaintiff’s case is filed against the defendant and when the trial begins. In a civil lawsuit, the plaintiffs file their case because they believe the defendant has harmed them physically, financially, or otherwise. Civil cases are typically resolved through financial compensation and have a lower burden of proof than criminal cases.
At its most basic, discovery is the formal process both sides go through to gather information about the case before a trial. Plaintiffs and defendants collect and exchange information and documents through a variety of discovery methods to flesh out their understanding of the case.
Certain relevant information may be solely within the possession of the defendant and, therefore, unavailable to a plaintiff at the time their case is filed. As such, discovery is crucial to building a case. While discovery rules vary by jurisdiction, the process generally calls for the production of information about “any non-privileged matter that is relevant to any party’s claim or defense.”
What is the purpose of discovery in a civil trial?
During this process, both sides of a litigation obtain discovery information before a trial and submit that evidence to a judge. But why does discovery matter?
Discovery is permitted to help attorneys and judges:
Set up a level playing field. While shock evidence may be common in TV crime dramas, real courts try their best to avoid surprises. Before the trial, both sides should know what evidence is going to be presented, so that they’re fully prepared with a response. Discovery helps prevent anyone from withholding evidence or witnesses from the court and seeks to ensure that both sides have the same information to work from. If both sides are fully equipped with the facts, they are better able to argue more specific legal issues in court.
Establish the scope of the case. Attorneys will narrow down what a case is about and identify relevant facts, which can keep the process from dragging on.
Resolve disputes. Discovery is a chance to learn more about your opponent’s case, which can help both parties decide whether they want to continue to trial or negotiate a settlement.
Analyze applicable legal issues. Based on the facts uncovered during the discovery phase of litigation, attorneys on both sides will conduct in-depth research into the legal issues in question to help them argue their case.
Streamline the trial. Trials are time-consuming. By establishing the facts of the case before entering the courtroom, plaintiffs and defendants can keep things moving during the trial phase.
File motions. Motions are written submissions to the court asking the judge to rule on some aspect of the case. They can help attorneys get access to the information they need, narrow the focus of the case, or even dismiss the case entirely.
Tools of the discovery process
Plaintiffs and defendants have a number of tools they can use to obtain information during discovery:
Interrogatories
Interrogatories are written requests sent by one party to another asking for answers to specific case-related questions. While each state has individual rules, the number of questions is usually limited. Typically, interrogatories are used to obtain basic information, such as details on people, corporations, facts, witnesses, document locations, and records. The recipient is required to answer in writing and under oath.
Depositions
Depositions are out-of-court testimony from a witness, taken under oath. They can help plaintiffs and defendants vet a potential trial witness and give counsel the chance to build their case around the testimony.
Depositions can be written in certain circumstances, but they are almost always taken orally. Oral depositions are usually attended by the witness providing the deposition, attorneys from all parties, and the person administering the oaths and recording the testimony. All parties have a chance to question the witness in oral examination, and lawyers are not permitted to coach their clients.
In most jurisdictions, information from an oral deposition is not directly admissible at trial, with three exceptions: if the witness admits something that goes against their interest; if the witness’s testimony at trial contradicts what they said in the deposition; or if the witness is unavailable at the trial.
Requests for admission
In a request for admission, one party will ask the other party to admit or deny a fact—such as the truth of a statement—under oath. A discovery request typically consists of multiple statements that can be admitted or denied and is used to authenticate information and establish basic facts of the case.
The information provided is binding, but requests for admission are typically not about proving guilt or liability. Instead, it helps the defendants and plaintiffs agree on certain basic facts (for example, their business addresses) so that they don’t need to be established during the trial.
Requests for production of documents
This is the most common way to gain access to documents during discovery. One party will ask the other for copies or originals of certain documents or other physical evidence related to the case. Where disputes arise, the parties can ask the court to compel the other side to provide the requested materials, as long as they are related to the case and not privileged.
In complex, multi-plaintiff litigations, the defendants’ document productions can be extremely large—requiring the plaintiffs’ attorneys to sift through tens of thousands if not millions of documents to find what they’re looking for.
What information is available through discovery requests?
Any information related to the lawsuit can be obtained through discovery, unless it’s “privileged,” or legally protected. This information can include documents, business information, reports of conversations, witness details, and much more.
However, several categories of information are protected from discovery. These include:
- The attorney’s work product, or work prepared by a lawyer for litigation.
- Confidential conversations between people with a privileged relationship—such as spouses, lawyers and clients, patients and doctors, and religious advisors and their advisees.
Additionally, the court may prevent the parties from having to produce certain sensitive or private information, including:
- Private matters that aren’t directly related to the case—for example, religion or sexual orientation. The implementation of this protection is controversial, however, and varies by state.
- The private information of people who aren’t directly involved with the lawsuit, such as coworkers or family members.
Depending on the subject of the litigation, the judge might enter a protective order to keep sensitive information that is produced to the parties in the litigation from being shared with non-parties or filed on the public record.
Left to right: Nicholas P. Kelly, Edward A. Wallace, Molly Condon Wells, Mark R. Miller, Jessica Wieczorkiewicz, Timothy E. Jackson.
The role of an attorney in discovery
Discovery is one of the single most important aspects of the litigation process. It defines the terms of the case and sets both sides up for success—or failure. A good attorney will have a thorough and nuanced grasp of the full discovery process and will work together with the defendant and the court to make sure your case is on the best possible footing going into trial.
A good plaintiff’s attorney will also be your advocate—which may include advising you to take a settlement before the trial process begins. Depending on the information gathered during discovery, both sides may agree that a settlement payout is a more effective remedy for the harm caused.
Questions about what discovery means for your lawsuit? Reach out to our legal team at (312) 261-6193. With over 75 years of collective experience in personal injury, class action, and mass tort law, Wallace Miller attorneys are experts in the legal process from filing to resolution.