To someone not very familiar with the law – who has never been sued or had to sue someone else – the process known as “civil discovery” can be one of the most surprising parts of a case. Civil discovery is used by each party in a lawsuit to obtain facts, documents and other types of evidence from the other side. This blog post gives you a brief overview of the process of civil discovery.
There are several different kinds of civil discovery. The one most people probably know from TV is the Deposition. Suppose you are a plaintiff-employee in a discrimination case. The employer’s attorney would have a chance to “depose” you in a deposition: you meet in a conference room and the employer’s attorney asks you questions. Likewise, your attorney can depose members of the employer’s management team. Depositions are used not only to get the information asked about, but also to see how the person would be as a witness at trial – do they seem credible? look nervous? answer questions articulately – or not? Many crazy examples of depositions can be found on YouTube; here is one of my favorite examples of how not to answer a deposition question: http://www.youtube.com/watch?feature=fvwrel&NR=1&v=RjtnRmy0H-U
But, before the case even gets to the deposition stage, other forms of discovery – called “written discovery” – will have been used. Why? Because your opponent’s responses to written discovery will form the basis of questions asked at the deposition. Written discovery includes: Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission. [In some cases, parties might also do a Site Inspection of land, or ask for “Things,” i.e. anything that is not a document.]
Let’s look at Form Interrogatories first. Form Interrogatories are a set of questions put out by the Judicial Counsel of California and can be found online at http://www.courts.ca.gov/documents/disc001.pdf.
Good ahead – take a look. Interrogatory number 2.8 asks: “Have you ever been convicted of a felony? If so, for each conviction state (a) the city and state where you were convicted, (b) date of conviction, (c) the offense, and (d) the court and case number.” You have to answer that question if the other side asks it. And they surely will ask that question, because a past felony conviction can be used against a person at trial to try to show they are dishonest.
A party to a lawsuit must answer, truthfully and fully (under penalty of perjury), any deposition question, interrogatory, request for documents, etc. that is asked, unless a legal objection can be made. Legal objections include grounds like irrelevant, requires speculation, calls for a legal conclusion, invasion of privacy, or that the question is vague and ambiguous. If a “responding party” refuses to answer based on an objection, the “asking party” might file a Motion to Compel in court, seeking a Court Order requiring the responding party to respond (and, most importantly, awarding monetary fines for “discovery abuse.”). This back and forth between the parties of written discovery and depositions, and, if needed, motions to compel, is the civil discovery process. The parties also have a duty to try to resolve discovery disputes informally, before resorting to filing a Motion to Compel.
Unlike the Judicial Counsel Form Interrogatories, Special Interrogatories are questions specially drafted for the particular case at hand. For example, to draw upon one of my own eviction defense cases, a special interrogatory might be phrased: “Describe in detail all bathroom ceiling repairs that were made by LANDLORD in the UNIT between March 2009 and March 2011.”
Requests for Admission are used to draw out admissions from the other side that may be used against them: “ADMIT that LANDLORD was informed by TENANT in a letter dated May 2, 2009 that the back stairwell of the UNIT had a missing step.” And a Requests for Production of Documents is used to obtain relevant documents from the other side: “Produce all DOCUMENTS related to LANDLORD’s inspection of the UNIT on March 3, 2011, including but not limited to notices to TENANT and reports of needed repairs.”
On top of all this, after getting responses to one “set” of Interrogatories and Requests, the asking party may ask another set of interrogatories and requests…and another set and another set.
You get the idea. Lawsuits sometimes take a long time to be resolved, and the process of civil discovery is one of the reasons why. In a relatively simple case, discovery may consist of an exchange of only one set of interrogatories and requests, and a deposition or two (or even less). In a complex case, multiple sets of written discovery and many depositions may be called for.
The process of civil discovery also explains why most cases settle before trial: both sides have a pretty good idea of what the facts will probably prove, will probably not prove, or maybe, just maybe prove.
In conclusion, I love civil discovery!
DJO LAW BLOG is a Legal Newsletter, and does not constitute legal advice for your specific situation.