Filing a Lawsuit: The Discovery Process

One of the staples of TV courtroom drama is the surprise evidence reveal. When the tough-as-nails prosecutor or the folksy defense attorney is about to lose the case, their assistant bursts through the doors with an envelope containing the missing evidence that will nail the case. The attorney waves it at the stunned witness, who collapses in shock — how did they find out? Cue credits.

In the real world, attorneys must share evidence with opposing counsel. Even in civil litigation or minutes before closing arguments, an attorney must show any newly discovered evidence to the judge and to the other lawyers in the case. There are no surprises in a jury trial.

Both parties share all evidence before the trial begins, whether it is a civil case or a criminal trial. The rules of civil procedure outline the process for sharing evidence, known as discovery.

For additional information about the discovery process, see FindLaw's Fact-Finding and Discovery page.

What Is Discovery?

Discovery ensures all parties negotiate from the same position before trial. One party cannot conceal favorable or damaging information to their side. In criminal cases, discovery prevents the prosecution from withholding exculpatory evidence that might exonerate the defendant.

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. Several methods of discovery are used depending on the case.

• Requests for Production (RFP): A request for production of documents lets the parties obtain copies of financial documents, medical records, and similar items. RFPs can also be tangible items. To enter onto property, attorneys use a "Request to Enter" variation of a Request to Produce.
• Requests for Admission (RFA): Attorneys must prove everything in a case in trial. An RFA asks a party to "admit" or stipulate to something. This saves time during the trial. Common RFAs ask parties to admit they own a vehicle or property or work at certain places of employment.
• Depositions: During depositions, attorneys ask witnesses questions as they would on the witness stand. Depositions are often used for witnesses who won't be available for trial.
• Interrogatories: An interrogatory is a list of questions specific to the case. They may ask for your opinion, details on the incident, or other facts in the case.
• Electronically stored information is a type of discovery that may be written or physical. Attorneys may ask for a document printout or the entire drive or computer.

The discovery process can take some time, depending on the type of case. 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.

RFPs can include photographs taken by other parties, names of witnesses, medical records, financial statements, and more. Personal injury claims and contentious divorces may have discovery files measured in pounds.

Failure To Respond to 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.

However, deliberately failing to respond to discovery requests or repeatedly asking for deadline extensions can lead to negative consequences. 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.

Answering Questions in Discovery

When you get an RFP or interrogatory, it may ask for something the other side should already have. For instance, in divorce cases, the opposing counsel may ask the husband for their tax returns for the last five years. The husband gets angry: "We file jointly! Why do they need those again!"

Parties can object to discovery if it is unnecessarily burdensome or duplicative, but you must generally provide everything requested. There are reasons why the opposing party asks you to provide information rather than get it themselves.

• Sometimes, it may be easier for you to get it than to make the other side's attorney dig for it.
• In financial cases, parties need to compare both sets of records. Unfortunately, it is common for business and marital partners to have two sets of books.
• You do not need to disclose personal information unrelated to the case. A common tactic in contentious divorce cases is digging for information on the other party's alleged affairs or unsavory habits. If it is not relevant to the case, you may answer in that fashion.
• If you don't know the answer or cannot reasonably obtain it, you can answer that way. You also do not need to answer questions phrased so poorly or broadly that they make no sense. For instance, "Provide all paperwork related to the case between the date of your marriage and the date of filing" is patently impossible.

Additional Discovery FAQs

Not every case uses the discovery process. Small claims cases are not complex enough to need discovery. Nonadversarial court cases, such as bankruptcy and probate, will not need discovery.

How do I get 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.

How does discovery work for criminal trials?

Discovery is different in criminal trials. The prosecution must prove all elements of their case under the Fifth Amendment to the Constitution. Unless the defendant pursues an affirmative defense, the defendant does not need to present their own case.

However, the defendant must receive Brady evidence. If the prosecution discovers any evidence favorable or exculpatory to the defense, it must immediately turn it over to the defense attorney.