What is Discovery?

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“The life of the law has not been logic; it has been experience.”

Oliver Wendell Holmes Jr., Supreme Court Justice

If you ever have had the pleasure of being part of a legal action, I am sure you have heard the term “discovery”. So what exactly does discovery mean? Discovery is the period where the parties in a legal action, exchange documents, witness information and other material relevant to their case. It generally starts right after all Defendant(s) have answered Plaintiff(s) complaint and depending upon the agreement of the parties, the cut-off of discovery is between 45 and 90 days before the scheduled trial date. If you are a Plaintiff or a Defendant you are going to be an active part of the discovery process either by deposition, interrogatories, request for production of documents, request for admissions or all the above.

I wanted to share some of the basics of discovery in case you ever have to go through the process. Even for me, employed in the legal field, it was hard when I was the plaintiff in a civil action regarding an automobile accident. You see things differently when you are the one involved. In my deposition, I felt attacked by opposing counsel, there were many questions that did not seem to make any sense and questions seemingly not directly related to my case, however, I stayed calm, and my attorney was very good at making appropriate objections when necessary. I also remember running in circles trying to answer all discovery requests. My best advice is to keep open communication with your attorney, do your homework and legwork and make an appointment to review the final product. Here are my thoughts regarding the main discovery items:

Deposition: If you are the Plaintiff in a legal action, the Defendant is going to request you get deposed and vice versa. Depositions are usually taken at an attorney’s office or at a court reporter’s office. A notice of deposition is sent with the date, time and location but before that, your attorney will meet with you in order to prepare you for your deposition. Depending on the case and the number of parties involved, a deposition can last hours or even days in complex cases. Usually depositions are pretty straightforward, opposing counsel will explain the process, you will be sworn in by a notary and then get ready to get inundated by questions. It is normal to feel intimidated, scared and even angry, but don’t worry, your attorney will be there the whole time and if there is anything out of the ordinary, he or she will object to the question. Stay calm and answer the questions with precision, there is no need for extended storytelling. Depositions are recorded and videotaped in most cases.  Remember you are under oath and any false statements can have negative legal repercussions for you. Your attorney will get the transcript of your deposition and then you will have the opportunity to review it and request any changes if there are any mistakes or misunderstandings.

Interrogatories: are questions prepared by either the plaintiff or defendant regarding the case.  Depending on the jurisdiction the time to answer varies.  In Nevada, you will have 30 days and together with your answers, you have to provide a notarized verification stating that your answers are true and correct. I have seen many getting frustrated with interrogatories. There are usually a lot of questions, and some can be intimidating and quite confusing. If you are the answering party, try to do your best, answer as much as you can and then get together with your attorney to work on the final product to ensure that all answers and objections are complete and correct.

Request for Production of Documents: as the interrogatories, this is a request that the plaintiff prepares for the defendant to answer and vice versa, in order to produce documents for examination.  Depending on the case, documents can be medical records, reports, tax forms, letters, emails, pictures, photographs, drawings, etc. This request is usually sent at the same time with interrogatories. Instead of trying to put together numerous documents, many attorneys send releases for the answering party to sign making it easier for both parties to get access to the records requested. The same time frame of 30-day response time applies in Nevada.

Request for Admissions: here a party requests that the opposing party admits or denies a statement. Just like with interrogatories and requests for production, if you have to answer a request for admissions do your best. Your attorney will review everything before the final product goes out.

When you are finished with this process you may need an adult beverage (or two). Ask your lawyer to take you out to your local pub but check first if it will be “on the clock”. If so, you might want to just go by yourself, it will be a lot cheaper!

I hope this helps a bit to understand the basics of discovery.  Have you been part of a lawsuit? If so, have you ever been deposed?

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