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What is Discovery?
Discovery
refers to a phase of litigation where the parties seek information
from one another. The information which may be requested (discovered)
during the discovery phase is very broad. In fact, courts allow
the request of information which is "reasonably calculated
to lead to the discovery of admissible evidence". Just
because the information sought may itself be inadmissible in
court does not preclude its discovery. Therefore, a party to
litigation may very well have to place much of their past personal
lives onto the public record. Discovery can be broken down into
several categories: Interrogatories, Request for Production,
Request for Admissions and depositions.
Interrogatories
Interrogatories are questions which are sent (propounded)
from one party to the other. In Louisiana, a party may send
35 interrogatories to a party. The party to whom the interrogatories
are sent must answer the interrogatories within a certain
time frame, usually within 15 or 30 days depending on the
state. If a party refuses to timely answer interrogatories,
they may be compelled to answer them by the court. If a party
refuses to answer interrogatories after the court has ordered
them to do so, the court may impose a number of sanctions,
including a dismissal of the case. The court may also order
the party who is being compelled to pay the attorney's fees
and court costs incurred in bringing the motion to compel.
The subject of the particular interrogatories may vary. Generally,
interrogatories usually seek information regarding the personal,
educational and work background of a party and the basis of
the claim, including the identity of witnesses and documentary
evidence which will support a claim or defense. They may also
seek the identity of expert witnesses and the factual basis
of the claim or defense.
It is extremely important to answer the interrogatories honestly
and accurately. In fact, most states require that the person
answering the interrogatories do so under oath, that is, swear
to the truthfulness of the answers provided. Objections may
be raised to interrogatories which seek information which
is privileged (either attorney-client privileged or attorney
work product immunity), or which may be overbroad, vague,
irrelevant, or otherwise defective. The attorney representing
the party usually assists with the answers by adding the relevant
objections to the answers. Ultimately however, it is up to
the party to whom the interrogatories are propounded to supply
the accurate responses to the interrogatories.
Requests for Production
This discovery device allows a party to request that another
party to the litigation produce documents relating to a claim
or defense. Usually, there is no limit to the number of requests
for production a party may propound to the other side. Like
interrogatories, there is a time deadline to produce the documents,
usually 15 to 30 days. Like interrogatories, a party may also
be compelled by the court to produce documents if they are
not produced within the allowable delays. Requests for production
usually seek documents specifically related to the claim.
In a personal injury case, a party may request income tax
returns to verify any claim of lost wages, photographs of
an accident scene or damaged property, medical records or
bills, W-2 forms, repair estimates, and other out of pocket
expenditures related to the claim. They may also seek expert
reports or other information gathered by an expert.
In addition to the actual production of the requested documents,
the party to whom a request for production is propounded must
also provide a written response which details which documents
are being produced. Again, like interrogatories, objections
may be raised to requests which seek information that is irrelevant,
privileged or otherwise not discoverable.
Requests for Admissions
This unique and extremely effective discovery device is
designed to narrow the disputed issues between the parties.
A request for admission asks a party to admit or deny a fact
relevant to the litigation. If the fact is admitted by the
party, that fact is deemed to be a stipulated fact which is
not in dispute. If a party denies the fact, the fact remains
in dispute. However, if a fact has been denied by a party,
and that fact is later proved at trial, most jurisdictions
allow the party to recover the costs associated with having
to prove the fact.
If requests for admissions are not answered within the specified
time frame (again 15-30 days), the fact is automatically deemed
admitted by the party failing to timely answer. This automatic
admission usually motivates the party to promptly respond.
However, a party can be compelled in most jurisdictions to
answer the request for admission.
Most jurisdictions have specific rules which do not allow
a party to arbitrarily deny a request just because they do
not readily know the answer or just because the request may
relate to the ultimate issue involved in the case. Requests
usually are not supposed to seek legal or expert conclusions
or the fault in the case.
Depositions
Depositions are formal question and answer sessions conducted
in the presence of a court reporter. A deposition is usually
conducted face to face, but may occur by telephone or video
conference. Each party is usually represented by their attorney
at the deposition. The party taking the deposition has his
attorney ask questions of the other party. The deponent, or
person whose deposition is being taken, must answer the questions
under oath.
Objections may be made to questions being asked of the deponent
by his attorney. However, most jurisdictions limit the objections
that can be made to objections relating to the form of the
question and the responsiveness of the answer. Usually, objections
involving leading, hearsay, or other objections relating to
the admissibility of the evidence are reserved for trial.
Objections relating to the form of the question usually involve
a question which is confusing, unclear, ambiguous or otherwise
flawed. An example of such a question might be "Sir you
sought medical treatment did you not?" If the deponent
answers yes, does that mean he did or did not seek medical
treatment? Thus, an appropriate objection to the form of the
question is in order.
Generally, unless the question is seeking privileged information,
is redundant or harassing, a party must answer the question
and his attorney may not direct him to refuse to answer the
question. A party may be compelled by the court to sit for
a deposition or to answer a question which he refused to answer
during a deposition. Again, the court may impose sanctions
for failing to comply with an order requiring an answer to
a question.
Conclusion of Discovery
Most courts do not allow the parties to set a trial date
until all discovery is completed by all parties. Given the
schedules of the parties, the legal delays for providing answers,
the number of parties involved, the discovery phase is the
longest phase of any litigation. It may last for years depending
on the complexity of the case. Generally, the more sophisticated
the case, the longer the discovery phase will take. The attorney
who promptly follows up on delayed discovery responses can
make the process go faster. However, professional courtesy
dictates that motions to compel do not get filed on the first
date after the responses are due. Most legal communities are
relatively small. Lawyers have to work together on many cases.
Courts generally do not condone running to the courthouse
over every dispute. They prefer that the parties amicably
attempt to work things out first before a motion is filed.
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