It’s more than your favorite platform to binge the latest docuseries or reality TV shows.
It’s also the name given to the period during which each party involved in a civil claim must provide the other with evidence.
During discovery, attorneys seek out details that support their client’s case in piles of documents, respond to written requests for information, take depositions, and more. And while you might imagine a vigorous closing argument in court being the deciding factor in your case, this pre-trial period is of the utmost importance in resolving your civil matter.
Because it’s so crucial to the success of legal matters, anyone embarking on a civil lawsuit should have a full understanding of discovery. Let’s look at what it is, how it works, and what you can do to best support your claim.
Discovery: what it is and how it affects civil litigation
Discovery facilitates a thorough exchange of pertinent information between the parties involved, ensuring that both sides have a fair opportunity to present their case and respond to the other’s claims. The process promotes transparency, discourages deceit, and significantly influences the trajectory of the case.
Unless the requested information is privileged, both parties are required to provide the other with copies of all relevant documents and information relating to the claim, regardless of whether those documents help or hinder their case.
Ultimately, discovery can influence whether a case goes to trial or is settled out of court, and what the overall outcome might be. This process can be complex and demanding, which is why legal guidance is typically instrumental during this phase of civil litigation.
Different types of discovery
During the discovery period, a variety of tools are at each party’s disposal, including depositions, interrogatories, request for documents, inspection of property, and request for admissions.
Your attorney may use any combination of these to build the body of evidence needed to support (or refute) the claim.
A deposition is a question-and-answer session conducted out of court, but under sworn oath.
Plaintiffs, defendants and third-party witnesses may all be deposed during a lawsuit. Statements made under oath during a deposition can be used as evidence in court, and if you are found to have lied during a deposition, you can be charged with perjury.
If you are deposed, you are entitled to have your attorney present at the deposition with you. Your attorney will monitor the deposition and object to any inappropriate or irrelevant questions.
Interrogatories are written questions sent to the opposing party. They must be answered under oath and within a certain timeframe. Interrogatories are a good way to get basic information and identify potential witnesses and evidence.
They’re also helpful for pinning down the other party’s version of events.
Request for Documents
A request for documents is exactly what it sounds like—a formal demand for the other party to produce relevant documents in their possession.
This could include emails, contracts, financial records, or anything else that could be helpful to your case. Requests for documents are essential for gathering evidence and uncovering the other party’s strategy.
Inspection of Property
Sometimes, you need to see the evidence for yourself. Literally.
An inspection of property allows you to examine tangible objects that are relevant to the case, like a damaged car, a defective product, or the SD card that holds footage from a home security camera. Inspections can be crucial for understanding the facts and supporting your claims.
Request for Admissions
Requests for admissions are a way to get the other party to agree to certain facts without having to prove them at trial. This can save time and streamline the litigation process.
For example, you could ask the other party to admit that they were driving the car at the time of the accident or that they signed the contract in question.
Discovery and the duty to preserve evidence
Anyone who is party to a lawsuit, or anticipates becoming a party to a lawsuit, has a duty to ensure that all potentially relevant evidence is preserved, so that it may be made available to the court during the discovery process.
This means that parties are required to refrain from destroying or disposing of any evidence that might be relevant to the lawsuit, particularly anything that might support the opposing party’s claim or harm their own. Failure to take reasonable steps to preserve evidence may result in sanctions imposed by the court.
In other words, don’t make any attempt to “cover your tracks” or delete communications associated with the claim, even if you believe that you didn’t do anything wrong.
Evaluating information: what is privileged information vs relevant information
During discovery, each party must provide any information relevant to the claim. However, some documents do not need to be provided if they are privileged.
Determining what is “relevant” or whether something is “privileged” can be tricky, as there are specific legal requirements that must be met. (Those embarrassing mirror selfies you took last week probably wouldn’t qualify as privileged in a tenancy dispute with the apartment owner, but, luckily for you, they’re unlikely to be relevant).
It is strongly recommended that you engage an attorney to help you with your claim and the discovery process. Failure to provide relevant information or documents may result in censure by the court or, in extreme cases, dismissal of your case entirely.
Support your claim by being proactive about discovery
You can reasonably expect to provide a plethora of documents during the discovery process, so do yourself a favor! Get proactive and start collecting any information that may be relevant as soon as you know that you’ll either be pursuing or defending against a civil claim.
If in doubt, err on the side of caution and provide anything that could potentially be relevant. Your attorney will review the documents and assess what needs to be provided to opposing parties during the discovery process. This will also help your attorney prepare any necessary defenses or arguments in support of your claim.
Contact an attorney for your civil litigation matter
Discover is about more than compiling information. There are specific guidelines that each party must follow, and violating them may be detrimental to the progression of your matter.
An experienced attorney can walk you through this essential stage of civil litigation with confidence and sound legal strategy, helping you reach the best possible resolution for your unique situation.
If you’re ready to move forward, contact Dressel Malikschmitt LLP now to schedule a consultation.
The content in this article is for general informational purposes only. It should not be construed as legal advice or a substitute for legal advice. The information above does not create an attorney-client relationship. Any reliance you place on such information is therefore strictly at your own risk.