If you’re facing litigation, you may be wondering, What is discovery in law? The term ‘discovery‘ refers to the lengthy, often-invasive pre-trial investigation phase in which parties request evidence from each other and outside sources.
Why Is Discovery Important?
Discovery is a powerful part of a lawsuit. It levels the playing field by requiring parties to share evidence with each other. Another way to describe what discovery is in law: The unearthing of revelatory information, often changing the entire trajectory of a case. Parties may drastically change their legal strategy based on what they find in the process.
Timeline of a Lawsuit
Where does discovery fit in a lawsuit? Though trials can have many possible combinations of steps, discovery always takes place between the filing of the complaint and the trial itself. Parties must wait for the discovery planning conference to begin requesting information. A rough, general timeline may look like this:
- Complaint (official start to lawsuit)
- Response to the complaint
- Discovery planning conference
- Pre-trial conference and scheduling order
- Discovery phase
- Pre-trial order and trial
Steps in the Discovery Process
What can be requested through the discovery process? Anything that pertains to an issue in the lawsuit, besides privileged material, is fair game. For example, financial records may be requested in a business dispute. If the case involves injuries in a car crash, lawyers may want medical records or even social media posts suggesting a litigant was not actually injured.
Depending on what the discovery is, in lawsuits, the steps generally include making a request, waiting for relevant information to be produced, and sorting through the information for admissible evidence. Court rules govern how long a party has to respond to discovery requests.
Discovery Rules and Procedures
Discovery in federal court is governed by the Federal Rules of Civil Procedure and is quite broad. Federal district courts have their own local rules which limit or clarify the federal rules. Special administrative bodies provide their own rules as well, such as the Merit Systems Protection Board discovery procedures for federal employment hearings. State courts have their own procedural rules which can be accessed online, such as on the Tennessee court system’s website.
Types of Discovery
It may be helpful to differentiate between toolsof discovery, or ways to request information, and types of information sought through discovery. The tools of discovery can take one of a handful of forms:
- Interrogatories are written questions for witnesses or litigants
- Depositions are oral interviews with witnesses or litigants
- Requests for Admission are written requests for a party to state something is true or false
- Requests for Production are written requests for a party to produce documents or things
- Subpoenas are court orders from a judge to produce documents or things
Parties can’t seek unlimited information in discovery. For example, federal local rules can limit the number of depositions, interrogatories, or other tools used to keep discovery from lasting too long.
Evidence sought through the discovery process can include:
- Real property, such as the inside of a house or a plot of land
- A physical or psychological examination of a party
- Expert opinions
Many courts have “mandatory disclosure rules,” meaning parties must send each other certain information at the start of a lawsuit without even being asked for it. This can include the name and contact information of anyone who may have information pertaining to the case, a copy of the discoverable information a party already has, calculations of damages, or certain insurance agreements. The Texas court system, for example, has more extensive mandatory disclosures.
Limitations and Common Objections
Now you have an idea of what discovery is. In law, however, there are exceptions to everything, including the broad nature of discovery. Parties are limited in what they can request. If a requesting party oversteps, the other side can ‘object‘ — by filing a motion — or a judge can limit discovery without being asked. The following privileges are the most common limitations on discovery.
Private communication between an attorney and client is protected under ‘attorney-client privilege.’ There must be an attorney-client relationship and the communication must not have been overheard by a third party (or else it’s not private!).
The concept of ‘marital privilege‘ protects private communication between spouses, and spousal testimonial privilege can be invoked to refuse to testify against a spouse.
‘Doctor-patient’ or ‘physician-patient confidentiality‘ protects conversations between a doctor/physician and a patient in a professional setting. A physician’s impressions of a patient’s state outside of a professional setting may not be protected.
Documents “prepared in anticipation of litigation,” also known as ‘attorney work product,’ are protected from discovery. This protects mental impressions, opinions, conclusions, or legal theories about the case from the opposing party. This type of privilege can be waived or overcome in certain circumstances.
Medical privacy laws such as HIPAA and its Privacy Rule prevent the mass gathering of a litigant’s medical records. Medical records pertaining to a substantive issue in a case can be discovered, though the discovery involves many steps.
Other materials may be protected under general privacy concerns if they are not immediately relevant to a key issue and aren’t commonly shared with people outside of a close group. This could include health and body issues, or religious or sexual practices.
Undue Burden or Cost
Electronic information can be protected from disclosure if the party in possession of it shows it would be unduly burdensome to make the information accessible. Other information may not have to be disclosed if it meets one of the following criteria:
- The information is duplicative, ‘unreasonably cumulative,’ or can be obtained from a less expensive or more convenient source
- The party asking for the information should have asked for it sooner
- The burden of disclosing the information outweighs the potential benefit for the other party, all things considered
What if you get privileged information accidentally? The federal rules state you must return or destroy the information and you’re not allowed to use it, even if you’ve already seen it.
Still Curious What Discovery Is in Lawsuits?
No matter what, discovery is — in lawsuits related to personal injury claims, in particular — a complex, time-consuming, and expensive process. Your best bet is to seek a case evaluation from an experienced attorney to know what to expect from the discovery process.