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My goal here at legal discovery is to provide viewers with information regarding the legal discovery process, as well as information regarding other important processes, such as electronic discovery. I am your source for legal discovery, electronic discovery, and ediscovery information! New posts can be found in the navigation bars to your right, as well as pertinent cases and other related information.

Discovery, also known as legal discovery, is the pre-trial phase in a court case. During this time each party can use specific methods to obtain or acquire information and facts and gather evidence about the case in order to help prepare them for the trial. It is the most important fact-finding method in the litigation process.

Most trial courts allow a wide scope for legal discovery, the theory being that all parties involved should go to trial with as much knowledge and information as possible, and that the parties should and shall not be able to keep secrets from each other. This legal discovery right allows both parties to view any information not protected by attorney-client privilege, that may pertain to the case.

This varies wildly from what you see on TV and in the movies, where a surprise eye witness or previously unknown document suddenly appears. This simply does not happen in legal discovery. The goal of legal discovery is to prevent surprises and for both parties to go to trial with as much of the required information as possible. This may not come as a surprise, but many cases will settle during the legal discovery phase, resulting from what was discovered that may not have come to light without legal discovery.

The vast majority of civil cases settle after or during legal discovery. After legal discovery, all sides are generally in agreement about the pros and cons of their cases, which can and may lead to a settlement outside of court. The use of legal discovery is often criticized as favoring the wealthier side as one major tactic is to make requests of information that are expensive and time-consuming for the other side to follow through with.

Types of Legal Discovery

There are many types of legal discovery. The most common types of legal discovery include:

Required Disclosures for Legal Discovery

Parties may be required to disclose particular information regarding four kinds of main information without a legal discovery request that concerns documents, damages, witnesses, and insurance. Parties must also disclose information about any expert witnesses who may be used at trial to present evidence. Any report written by an expert retained to give testimony must also be disclosed. Before trial, the parties must disclose witnesses who will be called at trial and those who may be called at trial including those witnesses who will be presented through depositions. Also, all parties must disclose a list of exhibits that will be presented at trial.

Legal Discovery Depositions.

A tool by which one party asks questions of the other party or of a witness presented by the other party. The deposition is taken under oath outside of the courtroom, usually in one of the attorney’s offices. The deposition is recorded by a court reporter and a copy of the transcript is provided to all parties. The transcript of a deposition may be used as evidence at trial.

Written interrogatories for legal discovery.

A set of written questions about the case submitted by one party to the other party, witness, or other person having information of interest which must be answered under oath, and the answers to which must be provided to the requesting party within a set period of time.

Production of legal discovery documents and exhibits to be presented.

A transcribed request asking the other party to produce specific documents or other objects that have to do with the case. An early request to view documents and other evidence allow for a viewing of evidence that might deteriorate over time. It will also prevent many instances of the disposing of such evidence.

Physical and mental examinations requested during legal discovery.

A written request submitted to the other party requesting that a physical and/or mental examination be made of a party.
Requests for admission. Written statements of facts concerning the case that are submitted to the other party that the party is required to admit or deny. Statements that are admitted will be treated by the court as having been established and need not be proven at trial.

All legal discovery requests must be reasonably complied with, answered, or objected to in the proper amount of time. If legal discovery requests are not answered or objected to, and sometimes if they are improperly answered or an improper objection is made, the side requesting the legal discovery may ask the court to compel proper responses, including the production of the requested legal discovery. The court may assess sanctions against a party not responding properly to legal discovery requests.

Conducting Legal Discovery

Once an answer to a lawsuit is filed, the time for conducting legal discovery begins. The timing and methods for conducting legal discovery will vary from state to state and from court to court. There are substantial and numerous rules governing legal discovery in each case. You should check your state rules and court rules for conducting legal discovery. Although there is a broad scope of what may be requested during legal discovery, there are strict deadlines for requesting legal discovery and responding to legal discovery requests. It is very important to be aware of and follow the deadlines because of the potentially serious consequences for non-compliance.

Legal discovery is carried out by sending written requests in a prescribed form to the opposing party specifically listing the type of legal discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.

Each state’s rules will include versions of the following legal discovery rules:

Written Interrogatories
Demands for Inspection
Requests for Admission
Propounding Party (party making the legal discovery request)
Format of the legal discovery request;
On whom the request should be served;
Which party retains custody of the original legal discovery request; and
Filing requirement (most legal discovery is not required to be filed with the court unless pertinent to a motion heard before the court).

Responding Party
Format of written response;
Effect of failure to respond in timely fashion;
Objections to the legal discovery request;
Verification (responding party must sign the responses under oath);
On whom the responses should be served; and
Filing requirement (most legal discovery is not required to be filed with the court unless pertinent to a motion heard before the court).

Each state has its own rules as to when a plaintiff and when a defendant may serve notice of taking a deposition that is initiated by serving notice on the other party in the pertinent format. The notice will say whose deposition will be taken, as well as when and where it shall be taken. There will also be rules concerning compelling a person or party to be deposed and steps to take to compel attendance at a deposition.

Each state shall have its own rules as to the production of documents and tangible objects. The party requesting the production must serve notice of the request in the required format. The notice will indicate which documents and things are to be produced, and when and where they are to be produced. There will also be rules for steps to take to compel production.

It is a rule that all parties involved in civil litigation, whether represented by an attorney or not, should be civil to each other. One of the things encompassed within this requirement for civility is the accommodation of each other’s schedules within reason and is particularly important with legal discovery because of the tremendous amount of information being obtained and exchanged. If either party reasonably requests to change a time for a deposition or the time for exchange of documents, the other party should be accommodating. If the other party seems to make a practice of requesting changes, not complying with legal discovery requests, or only partially complying, it might be time to go to court and request sanctions.

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