Discovery


Discovery is the pre-trial stage in a lawsuit by which each party can request documents and other evidence from other parties. Discovery is obtained either by the service of an adverse party with a notice to examine prepared by the applicant’s attorney or by a court order.  One party can request documents and other evidence from other parties and can compel the production of evidence by using a subpoena or through other discovery devices, such as request for production of documents and depositions.

Discovery devices narrow the issues of a lawsuit by obtaining evidence which is not accessible to the applicant and ascertaining the existence of information which may be used as evidence in trial.  Discovery procedures promote the settlement of a lawsuit prior to trial by providing the parties opportunities to analyze the facts before them which eliminates the expense and risk of trial. Discovery is rejected if the matter is irrelevant or if it comes under the protection of a privilege.

Discovery includes interrogatories, motions or requests for production of documents, requests for admissions, and depositions.  Interrogatories are specific written questions submitted by a person, pursuant to a discovery order, to an adversary who should respond under oath and in writing.  A party to a lawsuit may obtain an oral pretrial examination of a witness who is under oath to respond truthfully to the questions which is known as deposition.  A litigant is entitled to the production and inspection of relevant documents in the possession of an adversary.  A party may also ask an adversary to admit any material fact or the reliability of a document that has to be presented as evidence during the trial. This is known as admission of fact.

Pre-trial discovery is used for the disclosure of the identities of persons who know facts relevant to the commencement of an action.  The Federal Rules of Civil Procedure guide discovery in the U.S. federal court system.  Many states follow the federal system and some states take a different approach to discovery.  In federal and many state criminal prosecutions, only limited discovery is permissible unlike the full disclosure of information available in civil actions.  Limited discovery prevents the possible intimidation of prosecution witnesses and the increased likelihood of perjury that might result from unabridged disclosure.