Discovery

⁠

SUMMARY

Discovery is the formal process of asking and answering questions, both in writing and orally, as well as exchanging documents that may become evidence in a lawsuit. The general concepts of discovery are simple, but in practice, discovery is one of the most time consuming and frustrating aspects of litigation. The rule is that generally, a party should be able to ask for anything that might lead to relevant evidence and the responding party is obligated to respond with straightforward, truthful and verified responses. As a practical matter, defendants have a wide latitude in providing almost meaningless simplistic written statements that do little more that repeat the questions, if not totally evade discovery. Meanwhile, plaintiffs face the real problem, if their discovery responses don’t provide sufficient facts to prove their case, the plaintiff will lose. Add to this that discovery disputes are disfavored, and courts expect the attorney to compromise, a plaintiff should work really hard to provide good responses and must be prepared to invest time to get anything meaningful. The one saving grace for plaintiffs, is that if defendants refuse to respond, there is case law that says no other evidence pertaining to that question should be allowed to be admitted by the party who refused.

DETAILS

What is discovery?

Discovery is a process. There are several tools of discovery. Primarily, discovery includes written discovery, depositions, inspections, third party discovery, and expert discovery. Each tool has its particular nuances.

The first most important thing is that if a client is asked questions in writing or subject to a deposition, the client must read the questions or deposition notice as soon as it is sent. Then, if the discovery or depo notice requires looking for documents, the client must look for documents. Not only that, but the client must remember reading the discovery and looking for the documents, because eventually, the opposing party will ask the client if he or she read the papers and looked for the documents asked for.

What are interrogatories?

Interrogatories are questions that call for an answer in a sentence or a small number of sentences. In general, an standard [special] interrogatory starts with the terms, (1) state all facts, or (2) identify all persons who have knowledge of, or (3) identify all documents that contain facts pertaining to.

What are Requests for Admission?

Requests for admissions are questions requiring an answer that starts with (1) Admit in entirety; (2) Deny in entirety; (3) The Client can admit.....; or (4) the Client cannot admit or deny the request despite making a reasonable inquiry concerning the request has been made, and the the information known or readily obtainable is insufficient to enable that party to admit the matter.

Requests for admissions are risky, because once an answer is provided, the party cannot change the answer, without a court order.

However, stating lack of knowledge to be able to admit or deny leaves a part susceptible to the opponent making an assertion of fact, because the client has stated lack of facts.

Additionally, whenever the response is anything but an unqualified admission, the client must also state all facts supporting the answer, identify all persons with knowledge of the answer, and identify all documents pertaining to the answer. So, requests for admission are time consuming.

Answers to Frequently Asked Questions regarding Written Discovery

Question: Do I need to answer questions to written questions.

Answer: Yes.

Question: Can’t we just evade the questions.

Answer: There are some techniques to evade questions. However, generally, these create undesired results and consumer a lot of time, meaning a client’s money.

Question: Why can’t you, my attorney, answer the questions asked of me in written discovery.

Answer: I can’t answer the questions, because it is not my case, you are the participant, and you know the facts and you have the burden of proving the case with your testimony.

Question: What are verifications and why do I need to sign them.

Answer: Verifications are single page documents. They state that you read the requests and answered the questions asked completely, in a straightforward manner and truthfully. You make that statement under oath to tell the truth, and subject to the penalty of perjury.

What is a deposition?

A deposition is a meeting where the opposing attorney asks you, the deponent, the person being deposed, oral questions, and in general, you must answer. There are a few rules that a client needs to understand about deposition.

In general, unless the attorney instructs the client not to answer, the client must answer, each question.

The client needs to listen to his or her attorney’s objection and resultant instruction, before answering. The deposition proceeds with the opposing party asking a question. Everybody must wait for the question to be asked in its entirety. Then, the client should wait. The client’s attorney has the opportunity to object. Making an objection is normal and the client should not be worried about the objection or attorney discussion or argument over the objection.

However, the client should listen closely to the attorney’s instruction. A type instruction may be, you can answer the question. This is a clear instruction that the client cannot avoid answering the question.

Another typical instruction is, you can answer, if you understand. Well, if you listened to the question and your attorney, you probably do not understand, and you may be best served stating you do not understand and asking the other attorney to rephrase.

A possible instruction is, you can answer, if you remember. Well, if you listened to the question and your attorney, you probably do not understand, and you may be best served stating you do not understand and asking the other attorney to rephrase.

Answers to Frequently Asked Questions regarding Depositions

Question: Do I need to attend the deposition.

Answer: Yes.

Question: Do I need to answer the questions asked of me at the deposition.

Answer: Yes.

Question: Why can’t you, my attorney, answer the questions asked of me at the deposition.

Answer: I can’t answer the questions, because it is not my case, you are the participant, and you know the facts and you have the burden of proving the case with your testimony.

Question: Can I really be forced to do the deposition at the opposing attorney’s office.

Answer: Yes. There is nothing more than needs to be said about this.

CONCLUSION

Want to print your doc?
This is not the way.

Try clicking the ⋯ next to your doc name or using a keyboard shortcut (

CtrlP

) instead.