Fact-Finding and Discovery Phase in Civil Lawsuits

A major part of a civil lawsuit is discovery. Discovery, or fact-finding, ensures that all parties have the same information and can negotiate from equal positions.

Discovery prevents surprises and keeps the process moving. Civil cases where parties must fight for every piece of evidence, such as contentious divorces, can take years.

The discovery phase involves a complex series of documents and tasks. It’s wise to get support from an experienced civil litigation attorney to avoid errors.

What Is Discovery?

In a lawsuit, the discovery phase is the process through which each party “discovers” the evidence and facts that relate to the dispute to prepare for trial. Discovery ensures all parties negotiate or litigate from the same position. One party cannot conceal favorable or damaging information to their side. 

Discovery also ensures the trial runs smoothly. All parties can share and object to evidence before the trial and challenge its authenticity. This prevents delays during the trial while attorneys argue over minor details. Some information takes time to assemble, and the discovery process gives the parties time to acquire it. 

Rules of Discovery in Civil Procedure

As with any part of the legal process, the discovery phase of a civil case will require you to follow specific court rules. Rules of discovery exist for criminal cases as well. Evidence rules aim to ensure fairness and the disclosure of all relevant facts in the case.

The rules can vary across civil courts, so you’ll need to know which ones apply to your civil case. The Federal Rules of Civil Procedure (FRCP) govern discovery in federal court. State courts set their own rules. Most states base their civil discovery rules on the FRCP, with minor variations.

What Happens During Discovery

The discovery phase of a lawsuit begins after the plaintiff files the complaint. There are several forms of discovery, but the most common include:

• Written discovery: Recording each party’s position regarding basic facts and statements
• Requests for production (RFPs): Gathering documents and physical evidence in the other party’s possession
• Depositions: Interviewing the plaintiff, defendant, third parties, and witnesses

These steps can happen between parties, such as a defendant requesting a copy of the plaintiff’s income records. But they can also involve nonparties, such as a bank or witness.

During discovery, the parties may also decide to hold settlement discussions. Based on the initial facts, they may settle to avoid the long litigation process. After discovery, either party may file a motion for summary judgment if there is no dispute regarding the significant facts of the case.

Written Discovery

Written discovery consists of preprinted forms sent to the other party. Most discovery requests ask the other side to answer a series of written questions or admit certain things are true.

Written discovery also comes with deadlines. You must return your response within a certain period, usually 30-45 days.

Requests for Admission

In a civil lawsuit, it’s helpful to start with a basic set of facts that both parties agree are true. An admission is a formal way to agree that a particular fact is true. Once a party admits a fact, it won’t be open for debate during the trial.

Requests for admission (RFAs) ask the opposing party to admit either:

• An accepted application of law to fact as it pertains to the case
• That a document submitted for the case is genuine

For instance, a request for admission cannot ask the other party to admit they were driving the car that hit you. But it can ask to verify that the insurance card presented at the accident scene was theirs.

Requests for admission are useful discovery tools to resolve uncontested issues before trial. At case management conferences, parties use them to identify facts that won’t need litigation. This step of trial preparation ensures the rest of the case will focus on the central dispute.

Interrogatories

Interrogatories are open-ended questions sent to the other party for a narrative response. Interrogatories may inquire into any matter related to the case. They can ask for opinions on facts or names of other witnesses or interested parties.

For instance, in a personal injury case, interrogatory questions might include:

• “Have you lost income as a result of the accident? If so, state the nature of the income, the reason for the loss, and the method of calculating the loss. Provide proof of income if possible.”
• “List the names, addresses, and contact information for all physicians, clinics, and other healthcare providers who have provided treatment for the injury or injuries claimed in this case.”

As a case progresses, interrogatories can become more specific. “Special” interrogatories ask for answers about particular information uncovered in earlier interrogatories and requests for production.

Production of Documents and Physical Evidence

Lawsuits are all about documents. Relevant information for legal actions could appear in tangible items such as:

• Medical records or autopsy reports
• Business documents
• Financial records, such as tax returns, billing statements, or loan documents
• Contracts, such as lease agreements and service contracts
• Real estate or personal property documents, such as deeds, appraisals, or authentication documents
• Insurance policies
• Video surveillance footage
• Photos
• Emails, text messages, letters, and other relevant communication records

Each side can formally request the other party to produce (provide) these items. But there are limits to what parties may ask for in a court case. Plus, you only want information that pertains to your case. It would not be helpful to say, “Send me everything you’ve got,” and receive a crate of jumbled paper. The other party will also want to protect their privacy, so they’d probably complain to the court if you ask for too much.

Production of documents includes electronically stored documents. A party’s refusal to follow the request for documents, saying they keep all their records on a hard drive, is not an excuse.

Requests for Production

Attorneys must follow certain guidelines when writing requests for production of documents (RFPs):

• The items or documents must be things the party actually has or can get
• The request cannot include items the requesting party has or could get itself
• The request must describe the items requested with reasonable clarity
• The request must describe the form or format of production

A request for production can include the production of “tangible things,” such as photographs, x-rays, or objects. For instance, in a medical malpractice case, the request might include medical records, CT scans, and the calibration device from the scanner.

Although there is a limit to the number of interrogatories you may file (depending on state law), you have an unlimited number of RFPs. An attorney may protest when requests become burdensome or duplicative, but a civil lawsuit can have as many as a dozen requests for production.

Requests for Entry

Sometimes, a party may need to enter a building or other property to view something or take photographs. A “request for entry” is like a request for production and has similar restrictions. The property must be a location the party can enter, and the object must reasonably be expected to be on the property.

A request for entry is not a civil search warrant. The requesting party can’t enter the property and rummage around, looking for evidence to bolster a weak case.

Depositions and Witness Testimony

During depositions, the attorney for one party questions the other party, witnesses, or third parties about the case. They provide their oral testimony under oath, which means the court may penalize the person for lying during the deposition.

A court reporter or transcriptionist may be present if the party wants to enter the deposition into the court record. State laws usually limit depositions to one seven-hour session. If the parties need more time, they must ask the court for permission.

As with other types of discovery, depositions may cover any subject matter relevant to the case. They help prepare for cross-examination in a courtroom setting. Both attorneys are present, and each has an opportunity to question the witness. Attorneys may object to the questions, but witnesses must answer all questions.

Attorneys may instruct clients not to answer only when:

• It violates privilege, such as attorney-client privilege
• A court order has already limited that line of questioning
• The attorney intends to terminate the deposition

Electronic Discovery

Electronic discovery, or e-discovery, refers to collecting electronically stored information during the discovery process. E-discovery may include documentary evidence, such as bank statements. It may also be digitally created material, such as emails and text messages.

In cases involving business records or other proprietary information, parties may need subpoenas before they release some information. This is common when attorneys ask non-parties for discovery, for instance, if a security company must release CCTV footage of a car accident.

Responding in Discovery

Whenever a party receives a request for discovery, the other side has a limited period of time to respond. In most states, it is 30-45 days from receipt of the request. Depending on the type of case and the nature of the documents, your attorney may request more time to comply with the request. For instance, getting your tax returns from the IRS may take more than 30 days.

If the request is reasonable, it is usually granted the first time. The purpose of discovery is to make the trial process run smoothly. It’s better to have a brief delay in acquiring all the documents than to force a party into trial with documents they don’t have.

All these discovery requests can seem very intrusive. That is their purpose. Discovery requests ask for information that only you can provide.

The only discovery request you may refuse is one requesting a medical or physical examination. Parties may only get these on direct order from the court.

Failure To Respond in Discovery

It may seem unfair to help the opposing party make their case against you. But deliberately failing to respond to discovery requests or repeatedly asking for deadline extensions can lead to negative consequences. 

The consequences of failing to respond to discovery can include:

• Paying the other party’s attorney’s fees and court costs
• Paying the cost of the deposition
• Striking the party’s evidence or preventing them from presenting evidence to counter any claims raised in the discovery requests
• Dismissing the action and entering judgment for the other party
• Instructing the jury to presume the missing evidence is detrimental to the disobedient party’s case

State laws vary on the exact sanctions parties face, but they can include:

• Order to Produce: Requests for production are polite requests from one attorney to another. An Order to Produce (or an Order to Inspect) is a court order, and you may face contempt charges if you do not produce the documents after that.
• Motion to Deem Admitted: A failure to respond to an RFA can result in the opposing counsel filing a Motion to Deem you admitted to everything in the RFA. This may be bad if the RFA stated that you hid money or were driving drunk.
• Adverse Inference: The judge can instruct the jury (or the judge may assume) that the undisclosed evidence contained everything the opposing side believed, a legal doctrine called “adverse inference.” The Federal Rules of Civil Procedure (FRCP) Rule 37(a) defines a failure to respond and appropriate responses for each situation.

Spoliation of Evidence

Spoliation is the intentional destruction or concealment of evidence that might harm the damaging party. Unlike failing to respond, spoliation is intentionally hiding or deliberately destroying evidence.

Once the plaintiff files the first pleading in the case, they may send a notice of spoliation letter if they intend to subpoena documents. This puts the parties on notice to expect a request for records. Many businesses routinely delete emails and texts on a monthly schedule, so a notice of spoliation prevents them from accidentally losing evidence.

If the opposing party discovers you have intentionally hidden or destroyed evidence, the court can instruct the jury they may presume the evidence was unfavorable (or, in some jurisdictions, dispositive). Alternatively, the opposing party may request a default judgment.

How To Request Documents From Employers or Other Companies

When you need discovery evidence from a non-party, your attorney files a subpoena duces tecum. This is a legal request to produce documents. Unlike a named party in the case, a third party has no legal obligation to answer a request for production. Instead, attorneys use a legal process to make them comply.

Get Legal Support During Discovery

If you believe any questions are unfair or infringe on your rights, discuss them with an attorney. You may refuse to answer, but you must include the reasons for your refusal with the response. Your lawyer can also work to ensure you gather evidence necessary to support your claim or defense.