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Fact-Finding and Discovery

A major part of a civil lawsuit is discovery. Discovery, or fact-finding, lets the parties share information before the litigation begins. Discovery ensures that all parties have the same information and can negotiate from equal positions. This 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 Federal Rules of Civil Procedure (FRCP) govern discovery in federal court. Most states base their civil discovery rules on the FRCP, with minor variations. 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 discovery phase of a lawsuit begins after the plaintiff files the complaint. There are several forms of discovery, but the most common are requests for production and depositions.

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 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

Requests for Admission ask the opposing party to admit either:

  • An accepted application of law to fact as it pertains to the case or
  • 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. It can ask to verify that the insurance card presented at the accident was theirs.

Requests for Admission are useful discovery tools to resolve uncontested issues before trial. At case management conferences, parties use them to stipulate facts that won't need litigation.

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 Tangible Things

Lawsuits are all about documents. Financial information, medical records, and business documents contain relevant information for legal actions. But, there are limits to what parties may ask for in a court case. Also, 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.

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.

Attorneys must follow certain guidelines when writing requests for production:

  • 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.

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

During depositions, the attorney for one party questions the other party, witnesses, or third parties about the case. 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. 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), when a court order has already limited that line of questioning, or if 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.

Failure to Respond

All these discovery requests can seem very intrusive. That is their purpose. Discovery requests ask for information that only you can provide. It seems unfair to help the opposing party make their case against you.

The FRCP and related state laws provide sanctions for failing to respond to discovery. These 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

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. If you believe any questions are unfair or infringe on your rights, discuss them with your attorney. You may refuse to answer, but you must include the reasons for your refusal with the response.

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