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How Does Discovery Work in a Lawsuit?

The "discovery" process helps parties gather key evidence and avoid surprises that can sabotage a civil case.

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No matter what kind of civil case you're involved in, once a lawsuit is filed, the court will typically issue a scheduling order that includes a date by which all discovery must be completed. "Discovery" is a legal term of art that consists of several tools that are used to uncover facts relevant to the various claims and defenses at issue in the case. The parties in a lawsuit engage in discovery so that they can be properly prepared for trial, and avoid surprises that can adversely affect the outcome of the case. Let's look at the different kinds of discovery, and how discovery-related disputes might be resolved.

Written Discovery

The parties are permitted to discover relevant facts through three main types of written discovery: Interrogatories, Requests for Production of Documents, and Requests for Admissions. Interrogatories are written questions that must be answered in writing and under oath. Requests for Production of Documents require a party to produce specified documents for inspection and copying. Requests for Admissions seek to have a party admit the truthfulness of a statement of fact, so that proof of that fact will not be necessary at trial. Learn more about Interrogatories in a Personal Injury Case.

Oral Discovery

In addition to the types of written discovery discussed above, parties are also permitted to take "depositions" of persons who may have knowledge of relevant facts. A deposition is taken before a court reporter, and the person being deposed must give sworn testimony that may be used at trial. A deposition proceeds in a question-and-answer format similar to what occurs with witnesses at trial; there is, however, no judge present at a deposition to rule on evidentiary objections. The court rules governing depositions require that certain objections be made at the time of the deposition so that they are preserved in case a court ruling becomes necessary later on. Learn more about Depositions and Affidavits in Civil Cases.

Physical and Mental Examinations

When a party's physical or mental condition is in controversy, the opposing party can seek a court order requiring that party to undergo a physical or mental examination. For example, in a personal injury case, the defendant's insurance company may require the injured person to attend an "independent medical examination," or IME. The examining physician is typically asked to prepare a detailed written report setting out his/her findings, test results, diagnosis and conclusions. Get the details on the IME in the context of a personal injury case:

Discovery Disputes

It is common for disputes to arise between the parties over particular discovery requests. Sometimes a party will argue that a certain question is irrelevant, vague or overbroad; other questions can be said to invade one's privacy or a privileged relationship (e.g., attorney-client, physician-patient); and still other questions might arguable be asked for improper purposes such as harassment.

When the parties are unable to resolve a discovery dispute themselves, the court may be asked to intervene and resolve it for them via a motion to compel discovery. Courts do not typically favor these motions -- judges will strongly suggest that the parties resolve the matter on their own -- and will often assess costs and attorney's fees against the party who does not prevail in the dispute.

Forming a Discovery Strategy

At the outset of a lawsuit, an experienced attorney will formulate a discovery strategy that is geared toward learning as much as possible about who the opposing party's trial witnesses will be, what their testimony will consist of, and what documents they will offer to support their claims.

Depending on the number of witnesses involved and where they are located, the discovery process can be quite costly and time-consuming. But it is essential to thorough trial preparation that attorneys plan and execute a discovery strategy that fully educates them about the facts of the case, and minimizes the chance that they will learn something for the first time at trial. Learn more about Key Steps in a Civil Case.

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