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What happens during the Discovery Stage of a Lawsuit?
Lawsuits are civil actions taken by one party against another because of a perceived wrong against them. Many civil actions are settled without having to use a court, i.e. without having to file a lawsuit, but when the case against the defendant is strong and there seems no other way forward, a lawsuit may be the only way to settle the case once and for all.
To take a simple example of how a lawsuit may be called for, let’s say that a customer of a well known supermarket slips and falls over while collecting groceries. The customer is quite badly injured, has to take several weeks off work and faces significant medical treatment expenses. The injured customer believes that she wouldn’t have had the accident if the floor surface in the supermarket had been cleaned and attended to properly. She had slipped over on some sort of liquid that had been on the ground near the deli counter, but claimed that there had been no warning that the ground was hazardous and had evidence that the mess had been left unattended for several hours.
She submitted a claim for damages to the supermarket chain’s insurer, but the claim was denied, with the insurer insisting that the customer had not been taking enough care as she shopped.
After talking to a personal injury attorney with experience in slip and fall injury claims, she was advised to proceed with a lawsuit. It was explained that this might be a lengthy and potentially expensive procedure, but the case could still be settled with negotiation without having to go to court.
The discovery stage – what happens first after filing a lawsuit?
Once a lawsuit has been served by the plaintiff against the defendant, the first stage after this is normally called the ‘discovery’ stage.
Discovery involves both legal teams, that of the plaintiff and that of the defendant, presenting the evidence they have and any facts that could have a bearing on the case. Discovery is a pre-trial stage, so once it has been completed, there may be enough common ground for a settlement to be negotiated without having to go on to trial, or if there is still a gap between the plaintiff’s argument and that of the defendant, the case may then go on to a trial.
What happens at discovery?
Discovery is the process in which both sides can examine evidence that the other side has pertinent to the case. It may involve any combination of the following:
- requests for answers to specific questions, called interrogatories;
- requests for the production of documents;
- requests for admissions;
Discovery may not be limited only to evidence that may seem to be directly related to the case. It can also involve requesting evidence that may be indirectly related to the case, yet may lead to other evidence that could be more directly related. This doesn’t mean that either side can demand to examine anything and everything they want to examine. What cannot be examined depends on the nature of the lawsuit. So, for instance, it might mean that conversations between two spouses may be excluded in some cases, or exposing trade secrets, or releasing juvenile criminal records. The release of evidence which is not permissible in discovery is known as ‘privileged’ information.
Types of discovery
These are open ended questions which either party can ask of the other. An example of an interrogatory is when one party asks the other party to explain the evidence they have to support their claim (or defense against the claim). States may limit the number of interrogatories that can be asked in discovery.
Requests for production of documents
This part of the discovery stage is one of the most important as it involves making a request of the opposing party to provide physical evidence to support their claim (or defense against the claim). Physical evidence may be actual physical documents, photographic evidence and electronically stored evidence. A request for the production of documents is one of the main sources of evidence a party may rely on if moving on to a trial.
Apart from the parties involved in the lawsuit, a request for production of documents may also be made of a third party, i.e. a party who is not directly involved in the dispute through a subpoena, if necessary. This could be a request for video surveillance material recorded by video cameras in a supermarket or on a public highway, or may be a request for statements by a bystander or witness to an accident.
Requests for admissions
Requests for admissions are not open-ended like interrogatories. Instead, they are carefully directed questions aimed at revealing whether the other party agrees with or denies the question. In many ways requests for admissions cover the same ground that might have been covered by the original claim and counter claim that led to the lawsuit, but the questions may probe deeper than what was involved originally in an attempt to show how liable one party might have been, or whether the other party had any basis to their claim.
Depositions are out of court statements made by witnesses or other parties made under oath. They allow each party in the lawsuit to know in advance what a witness might say before a trial takes place. Depositions are not undertaken in the presence of a judge, but may take place in an attorney’s office and the statements recorded by a court reporter, usually by voice recorder and later transcribed. The depositions may be attended by either or both parties.