You filed a lawsuit or responded to one where you were named as a defendant. What comes next is perhaps one of the most time-consuming and tedious parts of your case—that is the dreaded discovery process. In short, discovery is the process by which parties to a lawsuit search for facts and information relevant to their claims and defenses. The process is uniquely American, as most judicial systems outside of the United States have a very different pre-trial fact-finding process. Indeed, many cases settle during this often very costly and unavoidable part of a lawsuit.
The Process of Discovery
Discovery takes place before a trial and should be aimed at gathering evidence to help prove a parties’ claims or defenses. Here is how it generally works: parties request information from each other, and both sides are compelled to provide responses. The most common type of discovery used is a document request, where one party asks for a copy of records that may exist in different forms, e.g. emails, text messages, receipts, phone logs. Often, hundreds or even thousands of documents can be requested of businesses, which can become very expensive quickly. This is especially so when dealing with electronic records such as emails. For this reason, it’s commonly recommended that businesses make use of document management systems that provide an easy way to locate and export any important documents, cutting down on the time needed to provide them during discovery.
Parties may also make use of deposition or interrogatories, both of which are forms of questioning. In a deposition, a witness is called by the other party and questioned similar to how they would be in court, except no judge is present. Interrogatories are less formal versions of depositions and are questions that are sent between the parties. Interrogatories are used mostly to elicit the identity of witnesses, the value of damages claimed, the existence of documents related to a case, and the existence of physical evidence.
Notably, discovery cannot be used by a party as a fishing expedition. Although a party may try to cast a wide net, under most circumstances, the responding party may lodge an objection. Some common objections include that the information sought is protected by attorney-client privilege, that the requests seek documents not relevant to the case, and that the requests are unduly burdensome and serve only to harass. If a dispute arises over an objection, a party can file a motion to compel discovery, meaning that a judge will decide whether or not the documents or information must be given over.
Discovery is only a precursor to the trial, and an experienced attorney should give their client advice on how to answer questions in interrogatories, prepare documents for discovery, and handle the discovery process in a cost-efficient manner. Contact Canales PLLC if you need assistance with litigation.
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