The legal process can be long and complicated no matter what type of dispute you might be involved in. Once you find a lawyer, or decide to represent yourself, and you've actually filed your lawsuit in court, the next step is "investigate" various matters about your case.
Discovery is the major part of the investigation: it's a process that allows you to get information and evidence from the opposing party in a lawsuit. The discovery process is controlled by the state and federal rules of court, and generally consists of:
- Depositions, which is when you ask the other party to answer questions
- Written discovery, where you use things like "interrogatories"
- Document discovery, where you ask the other party to give you certain documents and papers
Finally, you'll have to pay for your discovery. So, you have to pay the costs of any deposition you ask for or the costs of copying documents you request.
A deposition is testimony that is given under oath by the deponent, who is the other party or a witness, such as an eyewitness to a car accident or an expert witness in a medical malpractice suit. Usually, depositions are oral: you or your attorney meet the deponent in person and ask him or her questions about the case. The questions and answers are recorded by a court reporter.
Sometimes, however, a deposition can be in written form, where you or your attorney will draft questions that the deponent must answer (or "object" to by giving a specific reason for not answering it) under oath. Written depositions are commonly used because you can use them on a witness (unlike interrogatories) or you want to save on travel expenses when a witness or the other party doesn't live nearby.
The other party to your suit must appear at the deposition if you give him the proper notice of the deposition, that is, by telling him when and where to appear for it. The court rules can tell what the notice must contain. For a non-party, like a witness, you have to get a subpoena, which is a court order that tells the witness to appear for the deposition.
If the deponent (or you) fail to appear at a deposition as required by the notice or subpoena, the judge can impose sanctions such as requiring the deponent to pay the costs and expenses of the deposition, including your attorney's fees.
There are two primary types of written discovery tools:
Requests for admissions, which is where you ask the other party to admit or acknowledge that certain statements about the case are true. The other party can either admit or deny the truthfulness of the statement, or explain why he or she can't admit or deny it.
For example, in your requests for admissions in a medical malpractice case, the defendant doctor might admit that he performed surgery on you on a certain date. However, he might neither admit or deny that you were given certain medication by a nurse by explaining that he had no knowledge that the nurse gave you any such medication.
The idea behind requests for admissions is to save time at trial so that you don't have to litigate or prove facts or circumstances that the other party has admitted. Usually, the other party has a certain amount of time to respond to the requests, and if he doesn't, it will be assumed that he admitted them as true.
Interrogatories are written questions that you give the other party to answer. The questions can be general in nature, such "What is your name, current address and telephone number?" or can be specific to your case, such as, "Did you prescribe specific medication following surgery?"
Court rules limit the number of interrogatories that you can ask (it's 25 in federal courts), and they can only be sent to the person or persons who you're suing (a "party" to the suit), as opposed to a witness. Usually, the other party has a 30 days to answer the interrogatories, or to "object" to them, that is, give a reason why he she doesn't have to answer. If he or she fails to do so, you can ask the judge:
- To punish (or impose "sanctions") immediately, against him, which could include things like a court order that the factual matters in the interrogatories will be considered established and can't be disputed at trial by the other party
- For an order ("motion to compel") requiring the other party to answer the interrogatories, and if he or she fails to, the judge could hold him in contempt of court, which could lead to jail time and/or a fine
You can get various documents and papers from the other party by making a request for production of documents. You can demand to see all sorts of documents, so long as they are somehow related to the suit. For example, in a medical malpractice suit against a doctor and a hospital, you might ask for the credentials of doctors and nursing staff, the hospital's financial records, and any reports prepared by expert witnesses hired by the doctor or hospital.
With the increased use of computers and other digital technology, almost all courts now allow you to request materials that are stored in electronic form, such as e-mail. This form of discovery is often called "e-discovery."
As with interrogatories, if the other party refuses your request for the production of documents, you can ask the judge to impose sanctions immediately or for an order compelling the other party to give you the requested materials.
Questions for Your Attorney
- How much does a deposition cost? How long will one usually take?
- Can I refuse to answer an interrogatory if I don't understand what's being asked?
- Do I have to give the other party my electronic files if they contain sensitive or personal information?