UNDERSTANDING THE DISCOVERY PROCESS

by George A. Lohmeier August, 2012

"Why will it take so long for my case to get to trial?" This is a question commonly asked by our clients who become involved in litigation - whether in family law, criminal law, or general civil litigation. It is true that the number of cases on a court's docket can result in delay in getting a case to trial. However, much of the time involved in a case is spent in what is referred to as the "discovery process." The discovery process is crucial to the preparation of a case for trial.

The discovery process involves exactly what it implies: "discovering" evidence to prepare your case for trial, and also "discovering" the evidence the other party will present at trial so your attorney can be prepared to counter it. There are several discovery "tools" available to parties in litigation that can be divided into two broad categories: written discovery and depositions. The three primary written discovery tools are interrogatories, the request for production of documents, and the request for production of documents to a non-party.

Interrogatories consist of a set of written questions prepared by the attorney that are then sent to the other party in the case. The other party is required to answer the questions and affirm under oath that the answers given are true. These questions can be very specific as to dates, times, description of events, identification of witnesses, etc. They may also often seek subjective information, such as why you think you should win your case, why you think the opposing side should lose theirs, or what it is you will ask the court to do.

The request for production of documents requires the other party to produce all documents in that party's possession that are relevant to the issues in the case. In a family law case, this could include your bank statements, credit card statements, tax returns, medical records in your possession or under your control, wage statements, insurance documents, e-mails, chat room histories, and your computer data base. In other kinds of cases, the documents requested will vary and be designed specifically to obtaining documents that contain information about issues in the case.

The third often used written discovery tool is the request for production of documents sent to "nonparties". These "nonparties" are individuals or places of business that are not involved in your litigation matter but who possess documents that may contain information that is relevant to the issues in the case. A common nonparty is the employer of a party, whose documents are relevant to independent verification of income, hours of overtime worked, and the employment benefits that may exist. Other common targets of nonparty discovery are banks, credit card companies, telephone companies, and even social media companies such as Facebook. In personal injury cases, the defendant's attorney will likely wish to obtain the plaintiff's medical records directly from the nonparty medical care providers.

The other category of discovery consists of the taking of depositions. A deposition is a sworn statement of a party or witness that is given in the presence of a court reporter. The court reporter records the questions asked of the witness and the answers given by the witness. The court reporter then converts that recording into a written transcript of the testimony that can be used at trial to hold the witness to the same testimony he or she gave in the deposition. Depositions are a powerful and important tool in the preparation of any case for trial. They are, however, the most expensive of the tools in an attorney's arsenal, so the number of depositions that will be taken in a case results from a careful strategy agreed to by the attorney and client.

The discovery process can be arduous and frustrating. Thus, it is important to understand the process and appreciate why it is necessary. The success of any case often turns on the thoroughness with which the discovery process is completed. At Allen Wellman McNew Harvey, LLP, our attorneys carefully design the discovery process that will be employed in each case because we realize that preparation and the hard work of gathering evidence is a key ingredient to our clients' success in court.