Conducting Discovery in a Civil Lawsuit

Discovery is the process through which the parties to a lawsuit formally exchange evidence and information before a case goes to trial.

The availability of discovery can vary based upon the court in which a lawsuit is filed, and in some courts may not be available or may be available only with permission from the judge. Other limits may apply to discovery based upon the rules of court for the jurisdiction in which the lawsuit is filed.

Discovery can provide a number of benefits to a litigant, including:

  • Defining the Opposing Party's Story: Once the opposing party responds to discovery, it is difficult for that party to change its story from that given in its discovery response.

  • Learning Important Facts: Sometimes it is not possible to fully assess the facts of a case, including theories of liability and possible defenses, before conducting discovery.

  • Avoiding Surprises: There's an saying about asking questions at trial, that you should never ask a question unless you already know the answer. The discovery process can allow a party to obtain the information necessary to form an appropriate line of questioning and to avoid surprises at trial.

  • Facilitating Settlement: Sometimes the discovery process will reveal strengths and weaknesses in the parties claims and defenses that may help inspire settlement of the case.

Once discovery is complete, the information gained through discovery may also be used as a basis for pretrial motions, seeking such potential relief as summary judgment (judgment without a full trial), the narrowing or limiting of issues that may be heard at trial, or rulings to exclude or limit the use of certain evidence at trial.

When Is Discovery Available

The availability of discovery can vary significantly based upon the court in which a lawsuit is filed:

  • Small Claims Courts: Discovery may be unavailable in a small claims court or magistrate's court, or may be subject to stringent restrictions.

  • Lesser Trial Courts: Some states divide their regular trial courts based upon the amount of money that may be claimed in a lawsuit, creating a class of trial courts that conducts full trials over cases that are deemed to involve less serious issues or lesser amounts of money. Depending on the state's laws and the type of case, discovery may be limited or may be available only by order of the court.

  • Regular Trial Courts: In a regular trial court, in which the amount that may be claimed in damages is not restricted, discovery is normally available from the time the lawsuit is filed.

What Are the Types of Discovery

The most common forms of discovery are:

  • Interrogatories: Written questions that are submitted to another party, to be answered in writing.

  • Requests for Admissions: A demand that the other party admit or deny specific facts or allegations.

  • Requests for Production of Documents: A demand that the other party provide copies of documents in their possession, or otherwise make the documents available for inspection and copying.

  • Requests for Production and Inspection: A demand that the other party provide access to physical evidence or real property, for inspection and possible testing.

  • Depositions: The questioning of a witness under oath, before a court reporter who makes a record of the proceedings. Depositions may potentially be recorded on video.

The parties to a lawsuit must consider the cost and time involved with discovery as part of their trial strategy. Some forms of discovery, notably including depositions, are expensive and time-consuming.

When Can You Conduct Discovery

If you are litigating in a court that does not permit discovery, or requires court permission to conduct discovery, you may only conduct discovery as allowed by the court.

When discovery is permitted to litigants without prior court permission, the plaintiff may normally conduct discovery from the moment that a complaint is filed. The defendant may normally conduct discovery from the moment they formally appear in the case, whether by filing a formal appearance with the court or by appearing in person at a court hearing.

A trial court in which discovery is permitted will issue a scheduling order that sets specific deadlines for actions, including the completion of discovery. Although the details may vary by jurisdiction, normally all depositions must be completed by the date the court sets for the close of discovery, and all written discovery requests must be submitted to the other party by that date.

The parties may be able to extend discovery past the original cut-off date either by stipulation (mutual agreement) or with the permission of the court.

Limits on Discovery

When discovery is permitted, the scope of permissible discovery is ordinarily quite broad. However, the purpose of discover is to obtain admissible evidence, not to increase costs to the other party, to try to embarrass the other party, or to seek information that is not relevant to the issues before the court. Some courts limit the number of depositions that can be deducted or the scope of written discovery, with additional discovery allowed only by order of the court.

In some courts, particularly where the amount of money in controversy is relatively small, a party may ask a court to limit discovery so as to reduce its costs and burden.

When a discovery request is improper, the party or witness to whom the request is made may seek a protective order asking that the discovery not be allowed. A party may also seek a protective order that forbids the other party from disclosing certain information obtained through the discovery process.

For certain sensitive information, a party may see in camera review, asking that the response to discovery be submitted to the judge and that it be reviewed for relevance before any portion of the requested information is provided to the other party.

In most courts, a witness may only be deposed a single time unless a court grants permission for an additional deposition.

The Importance of Discovery Deadlines

There are two types of deadline that are important for the completion of discovery:

Deadlines for Responding to Discovery

Many forms of discovery require a response within a relatively short time-frame, such as within twenty-eight days of service. It may be time-consuming to complete discovery - for example, to review and answer interrogatories, have the answers proofread and reviewed for accuracy with your lawyer, to type them into final form, and to return them to the other party.

Failure to respond to discovery in a timely manner can result in sanctions, including financial penalties. Failure to respond to requests for admission in a timely manner may cause important facts and issues to be deemed admitted.

If a court finds repeated or willful violations of discovery, the court may order more serious sanctions such as deeming certain facts to be admitted, limiting a party's ability to introduce certain evidence at trial, striking portions of the disobedient party's pleadings, granting full or partial summary judgment, or holding the disobedient party in contempt of court.

The Discovery Cut-Off-Date

Parties should take careful note of the date that the court defines as the end of discovery, and should make sure that they complete all necessary discovery prior to that cut-off date.

Follow the Governing Court Rules

If you are representing yourself in court, before you file a lawsuit or answer a lawsuit, check the court rules for the court in which the case will be filed or is pending.

Check both the rules defined by the state for all courts in the state, and local court rules that apply to cases filed the court in which your case is pending. Make sure that you follow those rules when you litigate the case, including rules that govern or restrict discovery.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.