Discovery in Civil Cases

“Discovery” is a term used in civil lawsuits to describe the process in which each party is allowed to gather information from others to help prove or disprove claims or defenses asserted in the case. Stated otherwise, parties may obtain discovery of any matter that is not privileged or protected[1] and is relevant to the claim or defense of any party and proportional to the needs of the case. The specific methods of discovery and related limitations and deadlines are found in the applicable Rules of Civil Procedure in the court in which the case is filed. This article summarizes the five most common methods of discovery: (1) interrogatories; (2) requests for admission; (3) requests for production of documents and things; (4) depositions; and (5) physical and mental examinations.

Interrogatories are written questions from one party to another, seeking descriptive information about facts, the basis for claims and/or defenses, potential witnesses, documents, and tangible things. The questions are answered by the responding party in writing under oath and may include legal objections to the request.

In a request for admission, one party asks another party in writing to admit or deny a factual statement. Requests for admission are answered by the responding party in writing under oath and may include legal objections to the request. If a party admits a factual statement, it is legal proof of that fact.

In a request for production of documents, one party asks another party in writing to provide it with electronically stored information (ESI), documents, or tangible items. Requests for production of documents or things are answered by the responding party in writing under oath and by providing access to or copies of the requested items. Legal objections may be included in the response.

AnThere are two types of depositions: depositions upon oral examination and depositions upon written questions. A party may depose the other party, third parties, or expert witnesses. The length of a deposition varies. However, depositions are time-limited and cannot exceed a set number of hours. The participants may, however, take breaks, as needed. A deposition upon oral examination takes place in person. The lawyer for one of the parties asks the person called to answer the questions (“the deponent”) questions under oath. The answers to the questions are typically recorded or taken down by a court reporter who is present at the deposition. The deponent is allowed to have a lawyer there to defend the deposition and make objections. An examination upon written questions also takes place in person. However, prior to the deposition, the deponent is provided with a list of written questions. A court reporter then reads each question to the deponent under oath and records or takes down the answer.

For more on depositions, read Answers to Frequently Asked Questions About Depositions in Civil Proceedings.

In some cases where one of the party’s physical or mental condition is in dispute (such as in personal injury or products liability lawsuits), one party may order the other party to submit to a physical or mental examination, but only upon a showing of good cause and with advance notice of the set time and place where a specific medical examiner will conduct the examination.

Our Litigation Group is well-versed in all aspects of discovery and has collectively represented clients in thousands of cases in federal and state courts, including complex commercial matters with voluminous documents and electronically stored information.

[1] “Privileged information” in discovery refers to confidential documents and communications between specific individuals with special relationships such as attorneys and clients, doctors and patients, or spouses. “Protected information” in discovery refers to confidential information such as an attorney’s work product and, if they are not in dispute, information such as a company’s trade secrets, private health information, social security numbers, or driver’s license numbers.