Demystifying the Law: Discovery
If you’ve ever been involved in a lawsuit – or worked for a company that’s been sued – you’ve probably had some experience with discovery. But for others, the idea seems a bit foreign. Hand over information to the other side in a lawsuit? How can you win your case if the other side can see your cards? This article will attempt to demystify the process of discovery.
Discovery is an integral part of both criminal and civil lawsuits. It occurs during what is known as the pre-trial phase, and allows each side to investigate facts surrounding the case.
During discovery, each side is allowed to gather information and evidence from the other party to a lawsuit. As part of discovery, each side may:
- Conduct depositions, where the other party and witnesses answers questions under oath
- Engage in a written question-and-answer process, using what is known as interrogatories
- Request and collect written documents, related to the case, from the other side
With document discovery, you’re asking the other party to a lawsuit to give you written documents related to the case. These days, however, the term "document discovery" is somewhat misleading because it can also include electronic evidence, such as emails and voice mails. Even Twitter posts and Facebook status updates and images posted on your site may, and have been, used against people.
As with depositions and written discovery, the judge can sanction you for failing to turn over relevant documents requested by the other side.
You’re probably more familiar with depositions, which is testimony given under oath by the deponent (the other party or a witness). Usually, depositions are given orally; meaning you or your attorney meet the deponent in person and ask him questions about the case. A court reporter transcribes the conversation.
If you receive a notice to appear at a deposition, you are bound by law to appear and answer questions honestly. If you have any concerns about the questions you may be asked or the information you may have to provide, your lawyer should accompany you to the deposition and will tell you whether you are legally obligated to answer a question.
If someone fails to appear at a deposition, the judge can impose sanctions, or penalties. For example, the deponent may be required to pay the costs and expenses of the deposition, including attorney’s fees.
There are two primary types of written discovery:
- Requests for admissions
A request for admission asks the other party to a lawsuit to acknowledge the truth of certain facts or statements.
An interrogatory is a written question that’s sent to the other party in a lawsuit. (Interrogatories cannot be sent to witnesses.) The other party usually has 30 days to respond or to object to the question.
4 Discovery Mistakes to Avoid
- Don’t try to game the system. It’s illegal to withhold documents or lie during a deposition
- You can’t fool technology. An entire profession exists to recover deleted documents, emails and voicemails. Even physical destroying a computer, for example, won’t necessarily make the evidence go away.
- Don’t ignore a deposition notice or subpoena. Even if it’s a civil lawsuit, depositions are a critical part of the legal system, and a deposition notice or subpoena isn’t a request to appear – it’s an order. You can be penalized if you ignore it.
- Don’t shred documents, delete files and hide assets if you’re a party to a lawsuit. By doing so, you’re giving the appearance that you’ve gotten rid of evidence which could have helped the other side. It will come back to haunt you.
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