What Can be Discovered During the Discovery Process

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

The discovery process is an appropriate name for the period prior to when a trial begins when both sides to a lawsuit gather information that may pertain to that particular lawsuit. The discovery process can help both sides turn up facts and information that they may not have been aware of and which can help them build their respective cases. While some information is privileged during the discovery process, such as communication between a lawyer and client, doctor and patient, or husband and wife, and cannot be turned over during the discovery process, generally both sides have a great deal of freedom in uncovering new information during this pre-trial process. Here are just a few of the things a lawyer will often start looking into during the discovery process and what makes the discovery process both an incredibly important and incredibly frustrating process for litigants.

Depositions

During a deposition, an attorney will ask a person questions and both the answers and the questions themselves will be recorded by a court reporter. A deposition can feel a bit like taking the witness stand and in some cases an attorney will use a deposition to see how a witness behaves while being questioned. However, strictly speaking the deposition only pertains to the facts of the case, meaning the one being questioned is only supposed to answer what he or she knows rather than try to explain those answers. Many attorneys use the deposition to establish what the other party's version of events is and to discover new information from that party.

Requests for Admission

Although rarely used, a request for admission can be a useful tool during the discovery process. A request for admission shares features with both a deposition and interrogatories (which will be looked at below). The request for admission will ask an individual to either confirm or deny certain facts about the case. Because there are penalties for not answering, lying, or answering late, a request for admission can help ensure that both parties are absolutely clear about what any facts pertaining to the case actually are. While the facts of the case are usually laid out during the deposition and interrogatories, a request for admission can add an extra level of security to ensure that there is no confusion about what those facts are.

Producing documents

In just about every lawsuit, lawyers for either side will ask that the other side produce documents related to the lawsuit. The documents produced will largely depend on the matter being litigated. For example, in a medical malpractice lawsuit both sides will almost undoubtedly want to see medical records pertaining to the case. If a lawsuit involves a small business, then attorneys are going to want to see financial documents related to that business. In some cases, including family law and personal injury cases, lawyers have even demanded that the other side produce emails and social media posts, although a judge may not always grant these requests, especially if they violate privacy laws.

Lawyer's role in producing documents

This stage of the discovery process is when it can be especially valuable to have an attorney who is specially trained in whatever area of the law the lawsuit touches upon. An attorney needs to know both what kind of documents to look for and how to read them if that attorney is going to be able to build a solid case for his or her client. In a bankruptcy case, for example, an attorney needs to be able to know which relevant financial documents to look for and how to interpret them. Likewise, a medical malpractice case will require a lawyer who understands medical documentation and terminology and how to read such documents. Because of this specialized knowledge, people who are pursuing a complex case or a case that involves certain areas of the law are often well advised to avoid lawyers that offer only general and non-specialized representation (of course, there are exceptions to this rule, with plenty of "general" law firms offering excellent representation in all manner of cases).

Interrogatories

Interrogatories are similar to depositions in the sense that they are designed to ask you questions pertaining to what you know about the case. However, unlike depositions, interrogatories are written questions. Essentially, an interrogatory is a list of questions about the case. These questions are used to establish what you know. The questions can range from being very specific, such as "What was the color of the vehicle that hit you?", to very broad, such as "What happened after you left the grocery store?" Interrogatories, unlike requests for admission, not only help attorneys establish what the facts of the case are, but they also give them a chance to double check the veracity of what the other side considers to be the facts of the case.

The need for honesty

The discovery process can be one of the most emotionally and financially draining elements of a civil lawsuit. Those who are pursuing civil litigation need to be aware of the risks they are taking through such litigation, especially as regards privacy and the exposure of sensitive information. The discovery process is usually extremely thorough and litigants should not count on embarrassing secrets remaining unexposed during the process. Anybody who has something that is even marginally related to the case that they want to keep secret for whatever reason should probably avoid pursuing actions through the court system entirely. Information about one's finances, spending habits, online activity, medical conditions, and personal relationships could all be exposed depending on the nature of the case. Lying about such issues is also never an option, since it could expose one to contempt of court charges and will likely result in one's case being seriously and perhaps irreparably damaged.

The discovery process is a fundamental component of the civil justice system in the United States. This pre-trial process allows both sides to enter a trial with knowledge about the facts of the case, thus enabling them to build a strong case and to challenge the other side more effectively.

 

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