Discovery in a Civil Lawsuit
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The process by which parties disclose relevant information to each other, called "discovery" is perhaps the most important part of a civil case. The rules are designed to ensure that all parties disclose information relevant to the case well before trial, so that attorneys on both sides can make their best arguments based on complete information.
This is routine to lawyers, but can come as a surprise to parties who have not been through litigation before. You should remember that the rules cut both ways- if you are feeling upset about the amount of information the other side is asking you for, remember your attorneys are doing the same to the other side. Sequence of DiscoveryThe exact timing and sequence varies a little depending on which court you are in, but the usual order of events is this:
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Preservation of Evidence
Something many people do not understand is that you have a duty to preserve relevant evidence as soon as you are aware of the possibility of litigation. This does not just apply to evidence you might expect to use- it applies to all relevant evidence, even if (and perhaps especially if) it may be harmful to your case.
The rules impose serious consequences on parties who lose or destroy relevant evidence once they are on notice of litigation or potential litigation. This is called "spoliation." Sanctions can include:
Your attorney can help advise you about whether whatever you have should be turned over in discovery. Just because it exists does not necessarily mean it will be responsive to a discovery request. In the meantime, however, you should make sure that you keep it and do not discard, overwrite, or otherwise eliminate the information, and be sure to share all relevant documents with your attorney.
The rules impose serious consequences on parties who lose or destroy relevant evidence once they are on notice of litigation or potential litigation. This is called "spoliation." Sanctions can include:
- Monetary sanctions
- An instruction to the jury at trial that if the evidence had not been destroyed, it would have been helpful to the other side
- Dismissal of your case (or default judgment against you if you are the defendant)
Your attorney can help advise you about whether whatever you have should be turned over in discovery. Just because it exists does not necessarily mean it will be responsive to a discovery request. In the meantime, however, you should make sure that you keep it and do not discard, overwrite, or otherwise eliminate the information, and be sure to share all relevant documents with your attorney.
Document Requests
This is probably the most important written discovery tool available to counsel in civil litigation. Each side is allowed to request copies of a wide range of documents, so long as they are in some way relevant to the case. The requests you receive will usually be a combination of very specific requests and broad requests that are designed to cover literally anything relevant.
Your attorney can object to these requests. Sometimes it is a blanket objection where an entire category of documents is either privileged or not relevant to the issues in the case. More often it is a conditional objection that narrows or defines what you have agreed to produce. It is common for the requests to be very broad and draw objections, and for the parties to reach some kind of agreement about the scope of the production. If the parties can't agree, the requesting side can file a motion to compel, and the court will decide what is reasonable and relevant.
People sometimes do not understand the breadth of the term "document" when it comes to discovery. A document can be a printed document, an electronic file, an email message, a social media post, text messages and more- pretty much anything you have that is stored somewhere and can be read is a "document."
Your attorney can object to these requests. Sometimes it is a blanket objection where an entire category of documents is either privileged or not relevant to the issues in the case. More often it is a conditional objection that narrows or defines what you have agreed to produce. It is common for the requests to be very broad and draw objections, and for the parties to reach some kind of agreement about the scope of the production. If the parties can't agree, the requesting side can file a motion to compel, and the court will decide what is reasonable and relevant.
People sometimes do not understand the breadth of the term "document" when it comes to discovery. A document can be a printed document, an electronic file, an email message, a social media post, text messages and more- pretty much anything you have that is stored somewhere and can be read is a "document."
Interrogatories
This is another common written discovery tool. Counsel will submit written questions (limited in number to 25-30, depending on the court) that the other side must answer in writing, signed under the pains and penalties of perjury.
Your attorney will take care of the wording of the responses, but you will have a critical role in providing the information. This is worth spending some time on, because the answers will be essentially your sworn testimony. Remember if your attorney sends you a long list of questions to answer it is not because they don't want to do the work- it is because it is important that the answers reflect your knowledge and testimony.
Answering interrogatories is also a good opportunity for you and your attorney to dive into the facts in detail, which will help you both with discovery and litigation strategy going forward.
Your attorney will take care of the wording of the responses, but you will have a critical role in providing the information. This is worth spending some time on, because the answers will be essentially your sworn testimony. Remember if your attorney sends you a long list of questions to answer it is not because they don't want to do the work- it is because it is important that the answers reflect your knowledge and testimony.
Answering interrogatories is also a good opportunity for you and your attorney to dive into the facts in detail, which will help you both with discovery and litigation strategy going forward.
Requests for Admissions
These are not always used, but can be a powerful, or dangerous, tool. Either party can serve a set of factual assertions asking you to admit or deny them. If you have knowledge that allows you to admit or deny, you are required to do so.
They are important for two reasons. First, a well crafted request for admissions can "lock in" the other side on facts that may not be the ultimate facts, but are important building blocks of your case.
Second, if you do not answer them within 30 days the factual statements can be deemed admitted by the court. This is unlike the other forms of written discovery, where the parties usually confer about any disagreements, and go to the court for guidance if they cannot resolve the issue. The consequence for failing to timely answer requests for admissions, without leave of court, is self-executing.
They are important for two reasons. First, a well crafted request for admissions can "lock in" the other side on facts that may not be the ultimate facts, but are important building blocks of your case.
Second, if you do not answer them within 30 days the factual statements can be deemed admitted by the court. This is unlike the other forms of written discovery, where the parties usually confer about any disagreements, and go to the court for guidance if they cannot resolve the issue. The consequence for failing to timely answer requests for admissions, without leave of court, is self-executing.
Depositions
These usually happen after all of the written requests above are answered.
A deposition is a form of sworn testimony, but happens outside of court. The deposition itself usually happens at the office of the other side's attorney, though it has remained commonplace since the pandemic to conduct them virtually, over Zoom or some other video-conferencing platform. Whether live or virtual, there will be a court reporter but it will be a slightly less formal conversation than live court testimony. Your attorney will be there with you.
A deposition is not the same thing as your trial testimony. It is discovery, which means it is the other side's turn to ask you questions and discover what your testimony will be. What that means for you is that you do not have to worry about telling your whole story in the deposition- you only have to worry about understanding the questions and answering them truthfully.
Your attorney will also have the opportunity at the end of the other side's questioning to ask follow up questions if there was anything that was said that they feel was confusing or inaccurate. Remember, though, that this is discovery, so in most cases your attorney will not be asking you about everything you might later testify about, if it has not already been covered.
A deposition is a form of sworn testimony, but happens outside of court. The deposition itself usually happens at the office of the other side's attorney, though it has remained commonplace since the pandemic to conduct them virtually, over Zoom or some other video-conferencing platform. Whether live or virtual, there will be a court reporter but it will be a slightly less formal conversation than live court testimony. Your attorney will be there with you.
A deposition is not the same thing as your trial testimony. It is discovery, which means it is the other side's turn to ask you questions and discover what your testimony will be. What that means for you is that you do not have to worry about telling your whole story in the deposition- you only have to worry about understanding the questions and answering them truthfully.
Your attorney will also have the opportunity at the end of the other side's questioning to ask follow up questions if there was anything that was said that they feel was confusing or inaccurate. Remember, though, that this is discovery, so in most cases your attorney will not be asking you about everything you might later testify about, if it has not already been covered.
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If you have questions about your civil case, we can help you assess the case and understand your options going forward. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
