Discovery

By Aaron Larson

March, 2005

Contents

• Interrogatories
• Depositions
• Requests for Admissions
• Requests for Production
• Request to Inspect
• Medical Examinations

In the process of civil litigation, the parties will engage in discovery. The precise nature of the discovery, and the extent to which the parties may engage in discovery, may be limited by court rule or by a judge's scheduling order governing the progress of a case. In most cases the parties cooperate with discovery. Sometimes it is necessary to seek a court order to obtain compliance with discovery.

The most common forms of formal discovery are:

Interrogatories

Interrogatories are a set of written questions which are to be answered by the adverse party. Often, interrogatories are used to accumulate background information about the party, the essential facts of the case as interpreted by that party, and the nature and extent of the plaintiff's injuries and treatment history. Interrogatory answers are provided in writing. If you are served with interrogatories, note that there is a filing deadline for returning the answers. Try to get your answers back to your lawyer as quickly as you can.

Depositions

A deposition involves actual testimony, taken under oath before a court reporter. The parties and their lawyers may ordinarily attend a deposition, along with the witness who is being deposed. The lawyers question the witness in a similar manner to what would occur at trial, except most objections are preserved for future ruling. (At trial, the judge is present to rule on objections. Although for a deposition there may be unusual circumstances where a judge is available to rule on objections while the deposition is in progress, in most cases the judge will not be available so the parties make objections "for the record" and, if necessary, have the judge review the objections at a later date.)

Depositions can be particularly valuable in impeaching a witness who later attempts to contradict the prior testimony, and may also be used to preserve the testimony of a witness who is unable to appear at trial.

Sometimes depositions are taken before a videographer, so that the testimony is videotaped. Sometimes the court reporter will photograph the witness. You may wish to speak with your lawyer about appropriate dress and appearance for your deposition, particularly if there is a chance that you will be photographed or videotaped. When in doubt, dress as if you are going to court.

Requests for Admissions

Requests for admissions are similar to interrogatories, but rather than inviting a detailed answer they demand that the other party admit or deny a particular allegation. (e.g., "Please admit that you were driving a car, license plate 123 XYZ, on the date of the accident.") The party answering the request may object to the question instead of answering, and may also decline to answer citing a lack of sufficient information, knowledge or belief to form an opinion as to the truth of the allegation. Typically there are sanctions for filing late answers to requests for admissions, or for filing answers which are later disproved, which may include having the particular allegation deemed admitted. If you deny an allegation that is later established as true, there may also be sanctions, such as having to reimburse the other side's attorney fees associated with proving the allegation.

Requests for Production

A request for production is a request that particular items or documents be produced by the other side. Typically, this type of request is used to acquire documents and records, such as a copy of the plaintiff's medical records, or if earning capacity is in dispute a copy of the plaintiff's income and tax records. Sometimes it is possible to respond by providing a release, so that the other side may obtain copies of the desired records directly from the source. Parties are not ordinarily required to produce copies of documents not in their possession, but they may be required to provide a release if they choose not to obtain documents and records (such as their own medical records) not otherwise available to the defense.

Request to Inspect

Sometimes there will be an item of property or real estate that is part of the litigation. If the party who is not in possession of that property needs to inspect it, or needs to have an expert examine the property, and it is not possible to make a sufficient copy (due to the nature of the required inspection or the nature of the property itself), the party seeking the inspection may file a formal request to inspect the property. The request will ordinarily include

Medical Examinations

Where a plaintiff's physical or mental health is at issue in litigation, the defense may seek an "independent medical examination", or IME. Ordinarily the parties cooperate in scheduling IME's of the plaintiff. If the plaintiff does not cooperate, the defendant will likely seek a court order compelling the IME.