Find out about discovery — the legal process used to collect evidence for a lawsuit.

Once a lawsuit starts, parties to the lawsuit or their lawyers begin collecting information associated with the lawsuit. This investigative process is fittingly called “discovery,” since it usually brings up facts and paperwork that were formerly unknown — to at least one party involved in the lawsuit anyway.

Basically, discovery is carried out outside the courtroom, having parties exchange written details and sitting through one on one questioning sessions (referred to as “depositions”). Nevertheless, when the parties can’t come to agreement on what needs be handed over through discovery, a judge might have to settle the dispute.

The type of information that one party can force somebody to reveal — is normally very broad, though there are some restrictions. A party may ask for facts concerning the case, for the identity of others that may know something concerning the case, for paperwork related to the case, and for inspection of tangible objects or property associated to the dispute. Discovery can be made use of to seek information not only from the other party involved in the lawsuit, but also from individuals and businesses that are not involved in the lawsuit.

What Is Able To Be Discovered

The fundamental rule of discovery is that a party may acquire any information that is related — even just a little bit — to any matter in the lawsuit, providing that information isn’t “privileged” or otherwise legally safeguarded (read “Discovery Limits,” below). The following are some of the things lawyers typically request in discovery:

• whatever a witness or party observed, heard, or did related to the dispute
• whatever anyone said at a specific time and place (for instance, at a business meeting associated to the dispute or following a vehicle collision that lead to a lawsuit)
• the identity of anyone that might know something concerning the dispute or concerning the injuries or money losses one party or the other endured
• detailed info on how a business is being run (for instance, a party may try to establish how a company that sold a hazardous product chooses what to sell, or how a business comes to employment-related decisions or retains its accounting records)
• paperwork related to the dispute, and
• the individual, academic, and professional background of a witness.

Limits On What Is Able To Be Discovered

Just about any sliver of information that could have even a slight relation to the lawsuit is fair game in discovery. But this gigantic latitude sometimes results in abuse. Lawyers may attempt to examine subjects that have no significance in relation to the lawsuit, or that are intimate and confidential, serving just to annoy or shame the parties. Luckily, there are some legal restrictions on this type of investigation, and some safeguards to stop private matters from being disclosed to public record.

Private conversations. Conversations among individuals engrossed in certain relationships are given a special legal safeguarding referred to as privilege. Courts and legislatures have determined that the free flow of private information through these relationships is so vital that it must be safeguarded, although that information may be important to others in the lawsuit. Under the statute, no one could be required to disclose any information, regardless if verbal or written, that was privately exchanged within the below relationships:

• spouse and spouse
• lawyer and their client
• doctor and their patient, and
• spiritual advisor and their advisee (this privilege is usually called “priest-penitent,” it applies more commonly to any private conversation among a member of the clergy of a acknowledged religion and an individual seeking spiritual advice).

Private issues. Recently courts have increasingly acknowledged that some aspects of personal life must remain private, inaccessible to even lawyers. But the right to privacy is a somewhat recent and still-developing legal idea. Therefore, there is no clear-cut definition of exactly what it entails — and the extent of its safeguarding varies significantly by state. Roughly, the right to privacy safeguards an individual from having to disclose information that is not clearly related to the lawsuit and is an issue that an individual would not normally talk about or divulge to anyone outside of close family members and trusted friends. This might include matters like:

• health or body matters
• sexuality, sexual practices, or sexual liaisons
• spiritual or religious beliefs, and
• close family relationships.

Retaining discovery information from public record. Even when a party is required to disclose specific information to the other party in their lawsuit, that information can be handled confidentially by the court – in other words, the party that receives the information can be prevented from disclosing it to anyone else, and the court can withhold it from the public record. This might be done to safeguard, for instance, confidential financial information, sensitive information related to a business, or private medication information that is pertinent to the lawsuit. To achieve this, a judge usually must order that information be held confidential, in what’s usually referred to as a “protective order.”

Discovery Procedures

There are 4 kinds of formal discovery devices that are oftentimes used in lawsuits. Including:

• Through a deposition, one party or that party’s lawyer conducts one on one questioning of the other party or a witness to the dispute. The individual that is being questioned “deponent” is required to answer under oath, and the answers are recorded for future use at a trial. If the deponent is unable to testify at trial, the questions and answers could be presented to the jury as evidence. When the deponent does testify and provides different answers at trial from those that they provided throughout the deposition, the questions and answers could be used to prove to the jury that the witness changed their story.
• Petitions for presentation of evidence. In a petition for presentation of evidence, one party requests the other for physical evidence associated to the dispute. Petitions for presentation are usually used to gather relevant documents, like contracts, employment records, billing files, or documents associated with real estate. Nevertheless, these petitions can also be used to examine tangible objects or property — for instance, in a dispute about if a contractor properly remodeled a homeowner’s bathroom, the contractor’s lawyer could ask to have a remodeling contractor to inspect the work.
• Interrogatories are questions in writing one party sends to the other party that are required to be answered under oath. The answers can be used at trial likewise to deposition answers — to contest a party that later changes their story.
• Petitions for admission. In a petition for admission, one party requests that the other party to admit, under oath, that particular facts are true or specific documents are valid. These requests are usually used to save time and to narrow down the issues that are required to be proved at trial.

Source:

1. Paul Bergman, U. C. L. A. L. S. P. (2012, August 14). Formal discovery: Gathering evidence for your lawsuit. www.nolo.com. Retrieved December 15, 2021, from https://www.nolo.com/legal-encyclopedia/formal-discovery-gathering-evidence-lawsuit-29764.html

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