Discovery is a stage where the litigating parties request documents/information relevant to litigation. The process is used to discover facts significant to the preparation of the case and known to the opposite party. The most commonly used discovery devices are depositions, interrogatories, requests for admissions, requests for production of documents, requests for inspection and e-discovery.
Documents exempt from discovery proceedings are:
- Privileged /confidential documents
- information which is the work product of the opposing party, or
- certain kinds of expert opinions
The main discovery devices are described below:
Deposition: A proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.
Interrogatories: Written questions sent by one party to the other party to be answered in writing under oath.
Request for admission: A request to a party asking him/her to admit certain facts.
Request for physical examination: A request asking a party to get himself/herself examined by a doctor if his/her health is at issue.
Request for production of documents: A request to a party to hand over certain defined documents. In family law cases, parties often request from each other bank statements, pay stubs and other documents showing earnings, assets and debts.
Request for inspection: A request by a party for permission to look at tangible items (other than writings) in the possession or control of the other party.
Subpoena: An order requiring a witness to appear in court or at a deposition.
Subpoena duces tecum: An order requiring a witness to turn over certain documents to a specific party or to bring them to a scheduled deposition.
Both subpoena and subpoena duces tecum are issued by the court, and if the witness fails to comply, he can be held in contempt.
Rules 26 to 37 of Chapter V of the Federal Rules of Civil Procedure (FRCP) deal with depositions and discovery and guide the discovery process at the federal level in the U.S. Most of the state courts have a similar version at the state level. A summary of the pertinent rules under chapter V is given below:
- Rule 26(a): Automatic Disclosure: Parties are required to share evidence supporting their case without being requested by the opposite party. Failure to do so can preclude that evidence from being used at trial. This does not apply to evidence that would harm their case.
- Rule 26(b): Describes what is subject to discovery and what is exempt: Anything that is not privileged or otherwise protected and is relevant can be requested through discovery. Courts are given the power to limit discovery if found that the request is unnecessary, redundant or too difficult to produce vis-à-vis its significance to the case/issue.
- Rule 26(e): Supplementation: It gives the party the chance to correct any wrong information that may have been submitted.
- Rule 26(f): This rule provides for a very significant event, a special meeting between the litigating parties to organize their discovery procedure.
- Rule 26(g): Court can award sanctions to any party who has made use of a discovery device with an intention to subvert the flow of justice, purposefully delay the proceedings or to harass the opposite party.
Generally, the person who requests the court for initiation of any of the discovery devices has to bear the costs of those devices when the request is granted. Also, if the requesting party eventually succeeds in the lawsuit, the losing party may be asked to reimburse the cost of discovery proceedings to the other party.
Normally, a discovery procedure brings to light some information that would help either party analyze their respective strengths/weaknesses and their chances of successfully litigating the case. Therefore, discovery proceedings quite often result in settlement which eliminates the expense and risks of a trial.