Business disputes and lawsuits are handled through the civil litigation process, and discovery is one of the most important parts of this process. It's a fact-finding mission that's a major part of the preparation that takes place before an actual trial.
The purpose of discovery is to gather information and ensure that both parties to a lawsuit are aware of all data pertinent to a case. All litigants have a legal right to this information unless it's determined to be privileged, such as a discussion between an attorney and client.
Why Discovery Is Important
Many lawsuits settle out of court without ever going to trial. Data and testimony that are shared and discovered can determine whether a case can indeed be settled. Otherwise, it provides evidence at trial that both parties are aware of before the judge bangs the first gavel to open the proceedings.
Information from the process can be vital to a case if a witness is unable to testify at trial, or if documents aren't able to be used at trial for some reason.
Information Is Given "Under Oath"
Everything gathered in discovery is considered to have been given under oath. You're making a formal promise to tell the truth about the information you're providing. This rule applies as much to information given during the process as it does for testimony in court.
The Judge's Role in Discovery
The discovery process is conducted under the watchful eyes of the judge in the case, but the judge doesn't actually participate except to settle disputes in the process.
For example, a judge might issue a ruling if one side is expected to produce documents and the other party claims that producing the documents would violate confidentiality agreements or proprietary information that's owned by the business.
How the Discovery Process Works
The process involves requests made by both parties in the lawsuit. Requests can be made for any information that will provide "statements of fact," which basically outline the fundamental issues in the lawsuit. The more facts that can be agreed upon before trial, the smoother the process.
Two kinds of information are gathered during discovery: documents and testimony. You'll be given a deadline and specific requirements for producing documents, answering interrogatories, or for giving testimony in one or more depositions.
Discovery in civil cases can take many months, depending on the availability of witnesses and the time it takes to produce documents and gather information. The case won't proceed to litigation and trial until the process is complete.
Written requests in discovery often include interrogatories, question-and-answer documents that must be completed in writing by someone who has information. The responses to the questions must be provided under oath.
For example, a question might read, "On what date was John Doe's employment terminated." You would answer by giving that date, or you might state that you don't know.
Requests for Production of Documents
One party might issue a "Request for Production of Documents," compelling the other to provide copies of pertinent information—this is a common method of discovery for written and electronic documents. They can't be altered in any way.
This request should be highly specific as to what documents it's looking for. You can object on grounds that it's too broad if it's not. This won't relieve you of responsibility for responding, but it should narrow the scope of what the other party is looking for and it can buy you a little time to locate any pertinent information.
Information can also be gathered by questioning potential witnesses and experts in a process known as taking depositions. This testimony can be taken in person or by video.
The other party's attorney will question you under oath, much as you would give testimony in a courtroom at trial, but depositions typically take place in one of the lawyer's conference rooms. A stenographer or court reporter is usually present to prepare a transcript of the entire proceedings, even in some cases when the deposition is also being videoed.
Information gathered through depositions can be used if the person can't appear at the trial as a witness, or it can be used to impeach a witness who offers different testimony during trial from that which was previously stated under oath.
People who might be called for depositions include expert witnesses who attest to certain background facts that they have considerable knowledge of due to their field of expertise. For example, a psychologist might be deposed to explain the emotional effect that his unfair firing had on John Doe.
Requests for Admissions
Other data might be gathered by a "Request for Admission"—a series of statements that a party to the lawsuit is asked to admit or deny.
One such statement might be, "I was present at the time John Doe's employment was terminated." You would be asked to indicate whether this is, in fact, true, or you would deny it if you weren't present.
You're effectively stipulating to basic facts about the case when you make an admission so no one wastes time disputing them later at trial.
State Laws Can Differ
Some details regarding how the discovery process is handled can depend on where the case is being heard. Most states follow the federal process through the Uniform Law Commission's guidelines, but some states have their own processes.
Discovery in Small Claims Cases
Small claims cases don't involve a lengthy pre-trial process, so discovery isn't always part of it. These are more informal proceedings, and litigants might or might not be represented by attorneys. There's typically a limit as to how much money can be sought in damages in small claims court.
Documents and information are usually brought voluntarily to the hearing by each party in this type of case. For example, you would bring documents to show that services were indeed rendered if your business is claiming payment for services.
Parties are still considered under oath, essentially stating that the information they provide in the courtroom is complete and true.
If You're Facing Discovery in a Lawsuit
Abide by deadlines, as much as possible, if you find yourself embroiled in a legal discovery process. Provide what's asked for by the date specified, and ask for more time if you simply can't comply by that date.
There should be a process in place for requesting a new date if you're required to give a deposition on a specific date and you can't make it. Contact the attorney who issued the notice if it's not immediately apparent on the notice of deposition documents.
Take the process seriously. Make sure your testimony is complete and truthful. Don't attempt to alter documents or hide any if they're requested of you.
Consider hiring an attorney, regardless of whether you're the plaintiff or the defendant in the lawsuit or if you're a business owner from whom information is being sought. A lawyer can assist you with whatever information you're required to provide and can protect your business and your interests.