Formal Discovery: Gathering Evidence for Your Lawsuit

Learn about discovery the legal procedures used to gather evidence for a lawsuit.

Once a lawsuit gets underway, parties to the lawsuit or their lawyers start gathering information related to the lawsuit. This investigative process is aptly named "discovery," because it often turns up facts and documents that were previously unknown to at least one party to the lawsuit anyway.

For the most part, discovery takes place outside the courtroom, with parties exchanging written information and sitting through face-to-face questioning sessions (called "depositions"). However, if the parties can't agree on what should be handed over in discovery, a judge may have to resolve the dispute.

The kind of information that a party can force someone else to reveal is generally very broad, though there are some limits. A party may ask for facts about the case, for the identity of others who may know something about the case, for documents relating to the case, and for inspection of physical objects or property connected to the dispute. Discovery can be used to seek information not only from the other party to the lawsuit, but also from people and businesses that aren't involved in the legal proceedings.

What Can Be Discovered

The basic rule of discovery is that a party may obtain any information that pertains even slightly to any issue in the lawsuit, as long as the information is not "privileged" or otherwise legally protected (see "Discovery Limits," below). Here are some of the things lawyers often ask for in discovery:

• anything a witness or party saw, heard, or did in connection with the dispute
• anything anyone said at a particular time and place (for example, in a business meeting related to the dispute or after a car accident that turned into a lawsuit)

• the identity of anyone who might know something about the dispute or about the injuries or money losses either party suffered
• detailed information on how a business is run (for example, a party might try to determine how a company that sold a dangerous product decides what to sell, or how a business makes employment-related decisions or keeps its accounting records)
• documents relating to the dispute, and
• the personal, educational, and professional background of a witness.

Limits on What Can Be Discovered

Virtually any bit of information that might have even a slight connection to the lawsuit is fair game for discovery. But this enormous latitude sometimes leads to abuse. Lawyers might try to pry into subjects that have no legitimate significance for the lawsuit, or that are private and confidential, serving only to annoy or embarrass the parties. Fortunately, there are some legal limits on this kind of probing, and some protections to keep private material from being disclosed to the public.

Confidential conversations. Conversations between people engaged in certain relationships are given a special legal protection known as privilege. Courts and legislatures have decided that the free flow of confidential information in these relationships is so important that it must be protected, even though that information might be important to others in a lawsuit. Under the law, no one can be required to disclose any information, whether verbal or written, that was confidentially exchanged within the following relationships:

• husband and wife
• lawyer and client
• doctor and patient, and
• religious advisor and advisee (although this privilege is often referred to as "priest-penitent," it applies more generally to any confidential conversation between a member of the clergy of a recognized religion and a person seeking spiritual counsel).

Private matters. In recent years, courts have increasingly recognized that some aspects of personal life should remain private, beyond the reach even of lawyers. But the right to privacy is a fairly recent and still-developing legal notion. As a result, there is no clear definition of precisely what it covers and the extent of its protection varies considerably from state to state. Roughly, the right to privacy protects a person from having to divulge information that is not obviously relevant to the lawsuit and is a matter that a person would not normally discuss or reveal to anyone outside of immediate family and intimate friends. This might include issues such as:

• health or body issues
• sexuality, sexual practices, or sexual partners
• spiritual or religious beliefs, and
• immediate family relationships.

Privacy rights of third parties. Courts are more willing to protect the privacy of third parties for example, witnesses, co-workers, or family members of a party than the privacy of parties to a lawsuit. Courts often put limits on how much a party can find out about someone who isn't involved in a lawsuit, reasoning that it isn't fair to invade the privacy of someone who was dragged into a dispute.

Keeping discovery information from the public. Even if a party is required to disclose certain information to the other side in a lawsuit, that information can be treated confidentially by the court that is, the party who receives it can be prevented from revealing it to anyone else, and the court can keep it out of the public record. This might be done to protect, for example, sensitive financial information, confidential information belonging to a business, or personal medication information that is relevant to the lawsuit. For this to happen, a judge must usually order that information be kept confidential, in what's often called a "protective order."

Discovery Procedures

There are four types of formal discovery tools that are frequently used in lawsuits. They are:

• Depositions. In a deposition, one party or that party's lawyer conducts face-to-face questioning of the other party or a witness to the dispute. The person being questioned (the "deponent") must answer under oath, and the answers are recorded for later use at trial. If the deponent cannot testify at trial, the questions and answers might be read to the jury as evidence. If the deponent does testify and gives different answers at trial from those he gave during the deposition, the questions and answers can be used to show the jury that the witness changed his story.
• Requests for production of evidence. In a request for production of evidence, one party asks the other for physical evidence related to the dispute. Requests for production are usually used to gather pertinent documents, such as contracts, employment files, billing records, or documents related to real estate. However, these requests can also be used to inspect physical objects or property for example, in a dispute about whether a contractor properly repaired a homeowner's roof, the contractor's lawyer might ask to have a roofing expert inspect the work.
• Interrogatories. Interrogatories are written questions one party sends to the other to be answered under oath. The answers can be used at trial in the same way as deposition answers to challenge a party who changes her story later.
• Requests for admission. In a request for admission, one party asks the other party to admit, under oath, that certain facts are true or certain documents are genuine. These requests are generally used to save time and to narrow the issues that have to be proved at trial.

Want to Learn More?

These discovery tools are explained in detail in Represent Yourself in Court, by Paul Bergman and Sara Berman (Nolo), and Nolo's Deposition Handbook, by Paul Bergman and Albert Moore.