The typical trial has many phases. Discovery is one of those phases. Generally speaking, during the discovery phase, the parties request and exchange information they need for trial. The idea is for the parties to have all of the information they need to prepare for trial.
Every court (both state and federal courts) has its own specific rules about the discovery process. These rules provide details regarding the things the parties can do and what they must do when it comes to discovery.
For example, New York’s discovery rules dictate what kind of discovery a party may perform, the manner in which the parties can ask for information, and the timeframe in which the parties must complete the discovery process. The discovery rules also discuss the penalty, or sanction, when a party does not properly participate in the discovery process.
Finally, these discovery rules also explain that discovery is required in all cases, even if the case does not end up going to trial. The parties can still use the information they have to settle the case.
The discovery process eliminates the drama of an ambush at trial by a surprise witness or unexpected piece of evidence. The discovery process allows both sides to investigate all of the evidence (documents and testimony) that might be used in the eventual trial.
The discovery process also allows parties to review the case’s strengths and weaknesses in order to try and resolve the case before trial. Settlement before trial can help the parties avoid the costs of a trial where they may not be successful. Alternatively, if a party’s claim is weak, the other party may file motions to get the case dismissed.
There are many different types of discovery. Some discovery requires written responses to questions; some discovery simply compels the production of documents or things, and some discovery requires a party to provide oral statements or testimony. It is important to understand all of the different types of discovery in order to choose the best in the situation.
Interrogatories are written questions propounded or presented by one party to another. The party propounding the interrogatories can keep their questions limited to specific, standard information, or they can seek permission to ask for other relevant information about the other party and their claims. The responding party must respond in writing and under oath.
A Request for Production of Documents does exactly what it sounds like; it requires that the responding party produce certain documents for the requesting party. For example, the requesting party may request documents such as emails, letters, contracts, bank statements, photos, and any other documents that may be relevant to the case.
In New York, a party may use requests for admissions to the other party to admit or deny the truth of certain statements that are relevant to important issues in the case. For example, the requesting party in a car accident case may propose a request for admission such as, “Admit that you were driving a vehicle on January 1, 2022,” in order to establish that the other party was in fact driving a vehicle on the date of the accident.
The responding party must admit or deny the statements under oath. If the responding party admits the truth of the statements, the court will view the statement as true at trial. Also, if the responding party does not respond to the requests for admissions within twenty days of being served with the requests, the court will assume that the responding party admitted that those statements are true.
There are two types of subpoenas. A standard subpoena is a “written order to compel an individual to give testimony on a particular subject, often before a court, but sometimes in other proceedings.” On the other hand, a subpoena duces tecum is a subpoena that requires the witness to produce documents related to the proceeding.
If a party is served with a subpoena duces tecum, they must provide the other party with certain documents or things related to the case. If the person served with the subpoena duces tecum fails to provide the required documentation, they may face penalties.
“A deposition is a witness’s sworn out-of-court testimony.” Depositions can be completed in person or by video. The court is typically not involved with a deposition. Rather, the parties, their lawyers, and a court reporter are the only people present at the deposition.
The person being asked questions, the deponent, is put under oath and asked questions by the lawyers, and the court reporter records the deposition.
During the discovery process, the law allows the parties to inspect documents and things belonging to the other party. Usually, a party will use this type of discovery request if the thing they want to inspect is large or difficult to produce. For example, in a case involving a slip and fall injury on another party’s property, the injured party may ask to inspect the scene of the injury. Or, in a personal injury case, one party may request that the injured person submits to a medical examination (either mental or physical).
If you were injured, you might need evidence to prove that another party is at fault. A personal injury attorney can help. They can file a lawsuit and initiate the discovery process or enlist their own investigators to find evidence outside of the court process.