12 How Do I Discover Evidence?

Jim was both disgusted and annoyed that he had so many questions to answer and so many documents to hunt down and produce. Jim had blown off his departing business partner when he tried to get Jim to hand over some of their customers. When his partner filed a lawsuit, Jim laughed it off as ridiculous. Jim’s attorney even agreed that his partner didn’t stand much of a chance. But then, his partner’s attorney had started serving exhaustive discovery requests, requiring Jim to go back over the partnership’s entire history. Jim was spending hours upon hours answering stupid-seeming discovery requests. But hour by hour as he answered the requests, Jim was also growing more worried about the lawsuit, thinking that maybe it wasn’t so frivolous after all.

Discovery

Discovery involves using the powers that the court rules give to parties to acquire evidence both from the other side and from non-parties. When you file a lawsuit or find yourself as a defendant or third party in a lawsuit, the court rules authorize you to obtain information, documents, and other items from the other parties. The court rules presume that although you investigated your claims before filing, you weren’t necessarily able to get everything from the other side that you may need to prove your claims. After all, why would your opponent give you evidence they hold that works against them? Doing so would just encourage you even more to file your lawsuit. Yet once you file your lawsuit, you then have discovery powers to acquire evidence from the other side. You also have the right to inspect items or premises that your opposing party controls. You also have the power to require non-party witnesses to testify and produce documents. Discovery can make or break your case. Use your discovery powers wisely.

Interrogatories

Interrogatories are a first discovery power that parties hold in a lawsuit. Interrogatories are simply written questions that a party may serve on the other side, requiring the other side to answer the questions under oath. State and federal court rules tend to limit the number of questions because of the potential for abuse. But not all courts do so, and judges retain the power to lift the limit. You may ask about anything reasonably likely to lead to your discovery of relevant and admissible evidence. Given the usual limit on the number of interrogatories, attorneys tend to use them to try to limit or winnow claims, eliminate surprises, and pin opposing parties down on various facts and theories. Because a party also has the right to take a deposition, meaning a sworn interview, of a party or other non-party witnesses, attorneys also tend to use interrogatories to get information helpful for locating documents and otherwise preparing for depositions. Your attorney will know what to ask, but offer your attorney any ideas. See the example discovery requests in the appendix at the back of this guide, which begin with interrogatories.

Requests

Parties also gain the power to make production requests of the other side. Production requests are usually for documents, including electronically stored information. A defendant in a personal-injury case, for instance, would ask the plaintiff for medical records related to the alleged injury and work records related to any alleged wage loss. A plaintiff in a products-liability case, for another example, would ask for design drawings and test reports on the allegedly defective product that caused the injury. You may also ask the opposing party to produce physical items. The products-liability defendant, for instance, would ask the plaintiff to produce the allegedly defective product so that the defendant could confirm that it was indeed the defendant’s product and not altered in some manner. Production requests can gather mounds of helpful documentation and other evidence, forcing an opposing party to disclose things they’d rather that you do not discover. Use production requests wisely. Again, see the example discovery requests in the appendix at the back of this guide, which include production requests.

Inspection

A party also has a right to request an inspection of an opposing party’s premises. If, for instance, a lawsuit alleges that a contractor did defective work in a completed construction project, the contractor or other parties may ask to see the completed work to take photographs and allow experts to assess. Or if, for another example, a worker alleges an injury operating a defectively and dangerously designed piece of mechanical equipment in an assembly plant, an inspection request could get the worker’s attorney and experts into the plant to photograph and assess the equipment. Use inspection requests to gain access to anything that you cannot make an opposing party produce because of its fixed nature and secure location.

Admissions

A party also has a right to serve admission requests on the other side, requiring the other side to admit or deny the requests. Admission requests may be factual, such as asking a defendant to admit in a motor-vehicle-accident case that the traffic light was red rather than green when the defendant entered the intersection to collide with the plaintiff’s vehicle. Admission requests may also apply law to facts, such as to ask the defendant in the same case to admit that the defendant was negligent for having run the red light, colliding with the plaintiff’s vehicle. Admission requests can narrow the disputes in a case, by nailing down the parties on various facts and theories. You may also use an admission request to get the other side to admit the authenticity and admissibility of documents, saving steps at trial. Using admission requests effectively requires drafting skill, not to let the other side wiggle out of them with crafty denials.

Depositions

A party also has a right to take the deposition of the other party, a corporate party’s representatives, and non-party witnesses. Attorneys generally prefer to take depositions in their own offices but may travel to a non-party witness’s office or workplace for the witness’s convenience. Depositions get witness testimony down on record for later use at trial or in pretrial motions. A stenographer records the testimony for transcribing afterward. The plaintiff’s attorney in a motor-vehicle-accident case may, for instance, depose the police officer who came to the accident scene, to get the officer to confirm that accident investigation and reconstruction shows that the defendant was at fault. The plaintiff could then use that testimony for settlement purposes, to oppose the defendant’s motion to dismiss for lack of evidentiary support, or to get the officer back on track if the officer forgets or waffles on the testimony at trial. Depositions can be expensive because of the stenographer and transcription costs but can also be tremendously useful in the manners just suggested.

Subpoenas

A party also has the power to subpoena non-parties to produce records and to submit to deposition. A subpoena is effectively a court order, although the court rules in many instances permit the parties’ attorneys to prepare and sign subpoenas. You need not subpoena the other side. Parties in litigation have the obligation to respond to discovery requests, apart from subpoena. But non-parties don’t have to do as you ask, unless your request includes a subpoena. You would generally include a subpoena, for instance, in the above request to depose the police officer who investigated your motor-vehicle accident. The police officer would respect the subpoena and show up for the deposition. If the police report indicated the names and addresses of others who witnessed the accident, you might also subpoena them to depositions. For another example, a defendant in a personal-injury case might subpoena the plaintiff’s medical records from the hospital and employment records from the plaintiff’s workplace. Subpoenas are powerful. Use them wisely in your lawsuit.

Responses

The opposing party in your lawsuit must generally respond to your discovery requests, producing the documents you request, answering your interrogatories under oath, and submitting to deposition. State and federal court rules require responses within a certain number of days, typically 21, 28, or 30 days from the discovery request. Failing to timely answer admission requests may result in the court deeming them admitted. Failing to answer interrogatories or produce documents timely will generally get the other side’s attorney sending reminders. Parties can have good reasons for delaying their responses. They may need more time to search for information and documentation. They may also want the other side to respond to discovery first, to go to school on the other side’s responses. If the party serving the requests feels that the responses weren’t what the party was seeking, the party may serve follow-up requests. Discovery requests and responses can be a cat-and-mouse game. 

Objecting

The opposing party, though, need not answer everything you ask or produce everything you request. Parties may, for instance, assert the attorney-client privilege and any other privileges they hold. A party may also refuse to respond to burdensome, embarrassing, or oppressive requests. Parties may also maintain that requests seek irrelevant information not likely to lead to admissible evidence. Discovery responses thus frequently include objections alongside answers, raising these and other issues. Discovery can take the shape of a fishing expedition, one in which the party making the requests doesn’t know what they seek but nonetheless hope, by making overly broad requests, to catch something big. The court rules, and judges who enforce the rules, frown on fishing expeditions. Make your discovery requests broad enough to discover what you need but not so broad as to draw an objection instead of a response.

Privileges

The above discussion has already mentioned a party’s right to refuse to respond to discovery requests that seek privileged information. The attorney-client privilege is one primary ground on which a party would object and refuse to respond. If, for instance, the other side requested production of all written communications regarding the subject matter of the lawsuit, you would properly object to producing any communications between you and your attorney, of which you may have had many. The attorney work-product privilege is another common ground for objecting to a discovery request. If, for instance, the other side requested you to produce all chronologies, diaries, and summaries related to the subject matter of the lawsuit, you would properly object to producing chronologies, diaries, and summaries that you created at your attorney’s request for your attorney’s review and information or that your attorney created to help organize and understand the case. Other privileges, like the physician-patient privilege and spousal-communications privilege, you may have to waive to maintain your claim, depending on the nature of the case. Your attorney will know the privileges on which to stand. 

Abuse

Parties do unfortunately abuse discovery. In business litigation, for instance, a party may misuse discovery in attempts to gain proprietary information, such as customer lists, customer preferences, formulas and coding, product designs or ingredients, and supplier sources. Indeed, some parties may pursue litigation not to assert claims and preserve rights but instead simply to gain access through discovery powers to valuable information. A party could also potentially use discovery powers to obtain confidential information that would be embarrassing and harmful to the opposing party’s reputation if disclosed. The admission to an affair, obtained through a deposition in a divorce proceeding, would be one such example. Courts have the power to issue protective orders controlling discovery and the use of information acquired through discovery. Invoke those protective powers if you find yourself required to disclose something in your lawsuit that could embarrass and harm you or your interests.

Compelling

You may compel the other side’s discovery responses if they fail or refuse to respond as the court rules require. You or your attorney do so by drafting and filing a motion to compel, asking the judge to order the other side to respond. The other side may file a response opposing your motion, after which the judge generally hears a brief argument in court on the motion. As previously indicated, judges generally dislike discovery motions because of their detail and contentiousness. Avoid them, if you can. But sometimes, you can’t. Once the judge orders discovery, the party ordered to provide it had better comply. Failing to comply with a discovery order can bring sanctions in the form of costs to pay the other side, facts taken as established in the case, or claims or defenses established or dismissed. Comply with discovery orders, or risk sanctions.

Results

Discovery in some cases ends up being a big waste of time. One tactic that some parties will use, for instance, is to inundate the other side with mounds of irrelevant records, ostensibly responding to document requests, requiring the requesting party to search for the proverbial needle in the haystack. But in many cases, discovery either reveals significant new information and evidence, the strength or weakness of a particular claim, defense, or theory, the commitment or lack of commitment of a party or attorney, or the resources or lack of resources a party has to dedicate to the litigation. Discovery results can definitely change the tenor and shape of a case for better or worse for each party, including the parties’ settlement positions, the outcome of pretrial motions, and the outcome of trial. Treat discovery with the seriousness it deserves. Play the discovery game strategically and wisely.

Reflection

What information do you need to learn from the other side in your lawsuit? What documents do you need to acquire from the other side? Do you need to recover and inspect physical items the other side holds or controls? Do you need to inspect the other side’s premises to advance your lawsuit? What discovery do you expect the other side to seek from you? Do you hold evidence that you hope the other side does not discover? What evidence do you think the other side is holding that they don’t want you to discover? Do you have privileges you believe you should be able to assert against sharing certain information? Do you have information that you suspect you may need to disclose, relevant to your lawsuit, but the disclosure of which could harm your reputation or interests if misused? Do you, in other words, need a protective order so that the other side doesn’t misuse your disclosures? Are you prepared to devote substantial time and resources to conduct thorough discovery and to respond to the other side’s discovery requests? How do you anticipate discovery potentially changing your settlement position, the other side’s settlement position, or the outcome at trial?

Key Points

  • Discovery involves the process of obtaining information and evidence.

  • Interrogatories are written requests a party answers under oath.

  • Production requests seek an opposing party’s records and items.

  • You may request to inspect the opposing party’s premises.

  • You may ask the opposing party to admit to law applied to facts.

  • You may depose under oath opposing parties and non-party witnesses.

  • You must respond to discovery requests within a specific period.

  • Object to burdensome requests or sharing privileged information.

  • Beware the abuse of discovery to acquire proprietary information.

  • Move to compel discovery responses the other side owes you.

  • Discovery results change settlement, pretrial, and trial outcomes.


Read Chapter 13.