Next Article: Scope of Discovery – Civil Lawsuit
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What is “Discovery” in a civil lawsuit and how is it used?
Discovery is the process of identifying and obtaining any information or evidence that is relevant and material to the dispute. The rules of procedure for federal and state court litigation allow a party to obtain any such evidence from the other party or third parties. The purpose behind discovery is to allow the parties to obtain the necessary information to resolve or litigate the dispute. The outcome of a case should be based upon all of the facts and evidence available. Several methods exist for requesting information between the parties:
- Interrogatories – Interrogatories are a series of written statements in question format and directed to the other party. The court will permit a limited number of relevant questions that directly relate to or will potentially lead to relevant evidence. The questions are generally presented in a yes/no or admit/deny format. The party receiving the interrogatories must answer these questions within a statutory period of time. A failure to answer the questions may result in the court deeming the interrogatory statements to be true.
- Request for Production – Each party may request that one party produce any documents or other physical evidence that are relevant to the dispute or are likely to lead to relevant evidence. The party receiving the request for production must generally make the listed documents or evidence available for the other party’s review.
- Note: The request to produce documents can be directed to third parties who are not otherwise involved in the litigation.
- Depositions – A deposition is a formal interview of an individual taken when that person is sworn to an oath of truth (under oath). The court will permit parties to depose the other party and any third parties who may have relevant information or evidence. Depositions serve the purpose of formally recording an individual’s testimony prior to trial. It can prevent an individual from intentionally or inadvertently modifying her testimony at trial.
- Request for Admission – A request for admission is a statement of facts presented to the other party. It seeks to identify and establish the facts that are not in dispute. This is made to save time and money.
Through these court-approved methods, parties to a civil suit have extensive authority to uncover evidence this is material to the litigation. The authority to demand evidence becomes controversial when the evidence demanded in some way discloses private or personal information of third parties.
Discussion: Do you believe that this combination of discovery methods is effective in producing evidence relevant to a civil dispute? Can you think of other methods that could make the discovery process more effective?
- Many would opine that the combination of discovery methods is effective in producing evidence that is relevant to a civil dispute. This is because there are several methods of producing evidence that target varying types of evidence. Others may feel frustrated that these methods do not offer adequate access to information. For example, all discovery requests must demonstrate why the information requested is relevant. This can be a high barrier when the purpose of the discovery is identify unknown, but relevant information.
Practice Question: Carter sues Justin for defamation. Carter claims that Justin is spreading malicious lies about him that have harmed his career. What information and records might Carter seek to obtain from Justin? What methods might Carter employ to obtain those records?
- Carter might make a request for production of any written record of defamatory information. This may include any defamatory information recorded in an electronic medium. This could include letters, emails, text messages, instant messages, messages on social media channels, recordings, pictures, etc. Carter may require Justin to submit to a deposition to answer questions while under oath. He may send a request to admit any statements or information. Lastly, Carter may send Justin a list of interrogatories to answer under oath.
Gensler, Steven, Special Rules for Social Media Discovery? (2012). Arkansas Law Review, Vol. 65, No. 7, 2012. Available at SSRN: https://ssrn.com/abstract=2129877
Redish, Martin H., Discovery Cost Allocation, Due Process, and the Constitution’s Role in Civil Litigation (April 24, 2018). Vanderbilt Law Review, Forthcoming; Northwestern Law & Econ Research Paper No. 18-10; Northwestern Public Law Research Paper No. 18-11. Available at SSRN: https://ssrn.com/abstract=3168142 or http://dx.doi.org/10.2139/ssrn.3168142
Grunwald, Ben, The Fragile Promise of Open File Discovery (February 1, 2017). Connecticut Law Review, Vol. 49, No. 3, February 2017; Duke Law School Public Law & Legal Theory Series No. 2017-62. Available at SSRN: https://ssrn.com/abstract=3011936
Tidmarsh, Jay, Opting Out of Discovery (May 3, 2018). 72 Vanderbilt Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3172889
Brown, Darryl K., Evidence Disclosure and Discovery in Common Law Jurisdictions (April 1, 2018). Forthcoming in The Oxford Handbook of Criminal Process (2018); Virginia Public Law and Legal Theory Research Paper No. 2018-25. Available at SSRN: https://ssrn.com/abstract=3165520