Discovery

During the pretrial stage of a court case there is an important step called “discovery.” During discovery, both sides collect and exchange information about the case and prepare for trial.

During discovery, you can: 

  • Collect facts;
  • Get witness statements informally;
  • Get witness statements in a deposition;
  • Find out what the other side is going to say;
  • See how good you think their case is;
  • See how good your own case is; and
  • Get all the important information you need to present your case in court.

Discovery can be very expensive and time-consuming. In most civil cases the costs of discovery make up almost all the costs. It takes a lot of time for lawyers and their staffs to write up questions, review the responses, and argue in court about whether the other side did not respond to everything they should have. And it takes a lot of time to ask for, collect, and review the sometimes thousands of documents that may be involved in a case.

Discovery can be both formal and informal. In either case, the information that is gathered during discovery is not filed with the court. It is just shared with the other side in the lawsuit.

Discovery is very complicated and often requires knowledge of evidence rules and other legal strategies. It is often necessary to have a lawyer help you with discovery. If you are representing yourself in your case, discovery may be a good part of your case to let a limited-scope lawyer handle on your behalf. Find out more about limited-scope representation.

Informal discovery/investigation

Informal investigation includes all information-gathering that you can do on your own working with cooperative people or organizations both before and after a lawsuit is filed. You can do a lot of this informal investigation before the case even starts, and it can help you decide if you should even file a case. 

This often includes:

  • Conducting interviews with witnesses;
  • Gathering documents from public agencies, police officers, doctors, etc.;
  • Taking photographs (like of damaged property, accident sites, or other relevant objects or places); or 
  • Finding out about the other side’s insurance coverage.

You may not be able to use everything you find out during this investigaive process in court, but it can help you prepare your case.

Formal discovery

Formal “discovery” is a legal process that can be used after a case has been filed. There are several discovery “tools” you can use to get information the other side has.

Some of the formal discovery tools include:

  • Interrogatories — written questions directed to the other party that the other party must answer in writing and under oath. The answers can be used at trial.
  • Depositions  — oral, in-person questions that the person being deposed must answer under oath. You can take the deposition of a party in the case or of “third-parties,” which are people other than those directly involved in the case, like expert witnesses. Usually a court reporter takes down everything that is said in the deposition and produces a written transcript. It is also common to videotape a deposition.
  • Requests for production of documents — either for a particular document or a class of documents likely to be relevant to your case.
  • Requests for Admissions — when a party asks the other side to admit a statement is true, in general to allow the case to focus on what is truly in dispute. Responses to these written requests can be used at trial. 
  • Subpoenas  — written court orders requiring the other side or a third party to testify or produce certain physical evidence such as books, records, or other documents for inspection.

During the discovery process, lawyers can object to questions, requests for admissions, interrogatories, and other requests. If the other side does not agree with the objections and insists on getting the requested information, he or she can file motions in court to ask a judge to decide the discovery issues.

NOTE: There are also rules about formal discovery. Depending on the type of case it is, there may be limits on the number of questions that each side can ask, for example, and how long the discovery stage of the case may continue. It is important to learn and follow these rules. Talk to a lawyer for help understanding these rules. Click fo help finding a lawyer. Or go to your local law library for help researching these rules.

 

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