In movies and on television, court trials often feature surprise witnesses who suddenly derail the case. In reality, however, these types of surprises are rare, thanks to a process called discovery.
What is discovery?
Discovery is a pre-trial phase during which each party may obtain information on existing facts, witnesses, and documents known to the opposing party.
During this process, both parties and their attorneys have the opportunity to engage in formal fact-finding. Discovery is an important time for each side to gather crucial evidence.
Why is discovery necessary?
A successful discovery process can help your attorney win your case.
Often, new information comes to light during discovery that will aid you and your attorney as you decide on a strategy. Ideally, at the conclusion of the discovery process, your attorney will have learned what the opposing side knows, how they know it, and clues that show potential weaknesses in the case. All of these factors will help your attorney formulate a strategy, which may include initiating settlement talks.
What are the rules of discovery and what are my rights?
Discovery is governed by the law of civil procedure. Some information is protected from the process of discovery. For example, you are not obligated to share attorney-client work product, which may include your attorney’s thoughts, ideas, and theories. You are also protected by attorney-client privilege so certain confidential communications between you and your attorney will remain private. If the opposing party requests information that you or your attorney consider inappropriate, your attorney may raise an objection.
If you are a named party in the case, all of the rules of discovery apply to you. If you are not a party to the case, you may still be required to participate in discovery by way of subpoena. Keep in mind that not all information obtained during discovery is admissible evidence in court. In fact, much is not admissible and may not be brought up during the case.
What can I expect during the discovery process?
Discovery devices may include special interrogatories, form interrogatories, requests for admission, requests for production of documents, and depositions.
Interrogatories, requests for admission, and requests for production are forms of written discovery. Written discovery is conducted by mail.
Unlike written discovery, depositions are conducted orally. A deposition is a live interview during which a party or witness is questioned. During a deposition, multiple parties are present: the attorney who has requested the deposition, the attorney’s client, the person who is being deposed, and his or her attorney. Since depositions take place under oath, a court reporter will also be present. A judge will not be present because the trial has not yet begun and this information will not be filed with the court. As long as parties are given notice, the deposition may be taped.
Depositions are typically held in a neutral location, such as an office or conference room. Some attorneys prefer to have a client deposed on their “home turf” where the client may feel more comfortable (for example, in a conference room at the office of the client’s attorneys), but any conference room is acceptable.
Since written discovery is generally less expensive than a deposition, your attorney may first use written discovery devices to uncover information that can lead him or her to a direction during the deposition. Both written discovery and depositions are held under penalty of perjury.
When will discovery begin and how long will it take?
Once a judge sets a trial date, the dates of other procedures are defined on the basis of that trial date. Since discovery is part of the pre-trial phase, discovery begins and ends before the trial date. The length of discovery is controlled by the rules of civil procedure, which may vary from state to state.
In California, a deposition may only be conducted once and the number of questions that can be asked is limited. A single deposition may last no more than seven hours, although those hours are often divided over the course of several days. The total amount of hours required may be longer in order to allow the parties to take breaks.
Some clients are surprised by the length of the discovery process, and by the urgent demands on their time.
For example, written discovery requests must be answered within 30 days, but in practice, you will have much less time. A request is considered served on the date that the opposing attorney postmarks it. After the request arrives at your attorney’s office, your attorney will review the questions and provide them to you. To ensure that you meet this 30-day deadline, you may only have one to two weeks to answer the questions and produce the necessary documents.
How much will discovery cost?
Discovery is often the most expensive part of a case. The cost of discovery depends on the number of requests made by each side, the time required to prepare and respond to each of those requests, and your attorney’s fees.
Depositions can be particularly expensive. Before the deposition begins, your attorney must review relevant information, draft an outline of planned questions, prepare applicable exhibits, and complete any other preparations. The deposition itself may require several days. Afterward, your attorney must set to review the transcripts and summaries, type up notes, and conduct follow up. Meanwhile, the opposing side incurs costs as well. The opposing attorney must prep the witness before the deposition, attend the deposition, and spend time debriefing following the deposition. In total, a single deposition could require 25 to 30 hours—or more—from one party.
Despite the time and cost, discovery is a crucial pre-trial phase that is often necessary in order to properly pursue the case.
We’re always happy to answer your questions regarding this or any other legal procedure. Please contact us to make an appointment.