Step 5: Discovery

The discovery process occupies most of a civil litigator’s time and, in many cases, may be even more important than the trial itself because many cases settle on the basis of information obtained during discovery and subsequent negotiations. In some cases, litigants battle vigorously over the production of certain information and records, producing numerous motions to compel the production of information and to shield other facts from the discovery process. If handled properly, the information obtained in discovery can go a long way toward winning the case. If mishandled, litigants who lose discovery battles may lose the litigation war long before the trial even begins. In short, information is power -- the power to win lawsuits.

Despite some litigants’ attempts to resist discovery in many cases, the scope of discovery is quite broad, permitting parties to obtain information regarding any matter which is relevant to the subject matter of the lawsuit or "reasonably calculated to lead to the discovery of admissible evidence." Thus, parties can even ask witnesses for second hand, "hearsay" information. While hearsay would not itself be admissible at the trial, it may be very helpful for investigative purposes by yielding information which may identify witnesses who can testify from first hand knowledge. Because the discovery of such information may be reasonably calculated to lead to such admissible evidence, the discovery rules permit the production of such information.

Although the scope of discovery is rather broad, there are some limitations. For example, your opponent may not ask you what your client what he told you because attorney-client communications are "privileged" and outside the scope of discovery. Nor may your opponent obtain information relating to your mental impressions, research and strategy as such information is immune from discovery under the "attorney work product doctrine." In most courts, the same would be true of attempts to discover materials and documents which the attorney prepared for purposes of trial or in anticipation of litigation.

Provided that the information and documentation sought is within the broad scope of permissible discovery, the following tools may be used to gain valuable information:

Depositions

Depositions enable litigants to question parties and non-party witnesses about their knowledge of certain facts. All questions are typically asked under oath and in the presence of a court reporter who makes a verbatim transcript of everything the witness says. Not only are depositions useful in discovering favorable evidence, it may be used to lock adverse witnesses into their harmful testimony, thereby acquiring a tool to impeach their credibility at trial if their disturbing account varies from their deposition testimony. In the hands of a skillful litigator, the deposition is truly the heart of a case, permitting counsel to box adverse witnesses into a corner from which they will not be able to escape at trial. Thus, while depositions and the cost of transcript preparation may be the most expensive form of discovery, it may also be the most effective.

To schedule a deposition, a simple notice of deposition is all that is required for parties. However, for non-party witnesses who are not already subject to the power of the court, a subpoena must be added and personally served upon the deponent.

Interrogatories

These are written questions sent to opposing parties to obtain information regarding the facts of a case. A party’s response to Interrogatories must provide all information within that party’s control, even if the party lacks personal knowledge of all such information. In the automobile accident case of Paula Plaintiff v. Donald Defendant, typical interrogatories may include:

1. Identify all persons having any personal knowledge of all or part of the occurrence alleged in the Complaint, including, without limitation, their names, addresses, and telephone numbers, their precise location at the time of the occurrence, and the identity and precise location of all occupants in your vehicle.

2. State, concisely and completely, your version of the happening of the occurrence referred to in the Complaint, including, without limitation, all facts on which you base your defense to this suit that you were not negligent.

3. If you contend that the party propounding these Interrogatories at any time made an admission against interest with respect to any issue involved in this litigation, state the date, place and substance of the admission, and identify each person in whose presence the admission was made.

4. If you were suffering from any medical condition (i.e., illness, disease, ailment, infirmity, impairment, or disability) which may have contributed, to any degree, to the occurrence, describe each condition, state the date(s) you have experienced each condition, and identify all physicians, medical practitioners, hospitals, or other institutions who provided examination, diagnosis, treatment or care to you and the date(s) provided.

5. If you consumed alcohol, medication or drugs of any type within 24 hours before the occurrence, identify and describe the substance consumed, the time(s) during which each was consumed, and identify all persons who have personal knowledge of these facts.

6. If you contend that the party propounding these Interrogatories acted in such a manner as to cause or contribute to the occurrence, state any and all facts upon which you rely to support that contention.

7. State the speed, position and direction of your vehicle at the time of the occurrence and immediately thereafter, including, without limitation, the part(s) of your vehicle that made contact in the collision at issue, the movement of your vehicle, if any, immediately after the collision at issue, and the location and position of your vehicle when it came to a complete stop after the collision.

In federal court, litigants are normally limited to sending their opponents 25 interrogatories in a case while the Maryland Rules limit litigants to 30 questions in Circuit Court actions, requiring parties to choose their questions wisely.

Requests for Production of Documents

To obtain relevant documentation, litigants may send their opponents a request listing the specific categories of records needed and may subpoena similar documentation from non-party witnesses. In the case of Paula Plaintiff v. Donald Defendant, Paula may wish to receive the following documents:

1. Any statements, whether written, recorded or otherwise, taken of the Plaintiff.

2. Any photographs, movies, diagrams, or physical objects connected with the subject incident.

3. Reports of any expert witnesses Defendant intends to call at trial, and any documents used by these expert witnesses in preparing their reports and in forming their opinions.

4. Any damages or repair bills or other documents indicating damage to the vehicle operated by the Defendant.

5. All medical reports, medical notes, medical bills, hospital records, or other medical information, of any kind whatsoever, pertaining to the injuries claimed by the Plaintiff to have been sustained in the subject incident.

6. All medical reports, medical notes, medical bills, hospital records, or other medical information, of any kind whatsoever, pertaining to prior or subsequent injuries, ailments or medical conditions suffered by the Plaintiff which you have obtained through any source, including, without limitation, subpoenas of health care providers or institutions.

Mental or Physical Examinations

If an opposing party’s physical or mental condition is at issue in the litigation, and a litigant has good cause to conduct an independent examination of that condition, the court may order such an examination. In personal injury cases, where the plaintiff’s physical condition has been placed in controversy by the plaintiff herself, the parties typically cooperate in the scheduling of an independent medical examination without insisting on the filing of a formal motion.

Requests for Admissions

Perhaps the least used of all discovery devices, a Request for Admissions permits a litigant to request that his opponent admit certain facts or the authenticity of certain documents in a case. While opponents will rarely admit the truth of devastating facts which would cause them to lose the case, this discovery device is often helpful in requesting the admission of facts which are not truly in dispute. This allows the parties to streamline the trial of the case by avoiding the need to call certain witnesses to testify to the authenticity of certain documents or to produce evidence of uncontested facts. If an opponent refused to admit the irrefutable, he may be required to pay the other side’s expenses in producing such evidence at a later trial.

While many lawyers overlook this discovery tool, it is rather easy for a party to request the admission of facts or the authenticity of documents. For example, in defending against a personal injury claim, you may wish to ask the other side to admit that:

1. All documents produced by Defendant n this case are authentic and genuine.

2. All documents produced by Defendant are admissible.

3. Plaintiffs have not suffered a permanent injury as a result of the occurrence alleged in the pleadings.

4. Plaintiffs have not been granted any type of disability rating as a result of injuries sustained in the occurrence alleged in the pleadings.

5. Plaintiffs have been discharged from medical treatment as a result of any injuries allegedly sustained in the occurrence alleged in the pleadings.

6. Plaintiffs will not be seeking further treatment or medical evaluations as a result of any injuries allegedly sustained in the occurrence alleged in the pleadings.

7. There is no evidence that Plaintiffs will need to incur future medical expenses as a result of any injuries allegedly sustained in the occurrence alleged in the pleadings.

Should parties fail to cooperate in the discovery process, the court may impose sanctions upon misbehaving litigants and their counsel by imposing fines, attorney’s fees, precluding certain claims and defenses, and - in egregious cases of misconduct - by entering judgment against the violator. Accordingly, it is important to understand and to comply with the discovery rules by producing all necessary information.