The Discovery Process

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Many Americans believe that when a lawsuit is filed against them, they just answer the complaint and show up to court with their evidence to prove or disprove their case. However, this TV inspired belief is far from the truth. The typical court case goes through many stages before the case goes to trial, if it even makes it that far. One of the most important aspects that is often overlooked by the common person is the Discovery Process.

Understanding what the discovery process is and what tools you can use in discovery will position yourself to go forward confidently in your lawsuit. The basic Discovery “tools” include: interrogatories, requests for admissions, document requests, depositions and examinations.


Interrogatories are questions designed to elicit specific information from one party. Typically, these questions are essentially background related. For example, in a “wage and hour” case where a person hasn’t gotten paid for their work, the interrogatories will ask about employment history with the company, who was in charge of paying employees, and what the typical hours and shifts worked were.

Interrogation Rules

Each interrogatory, according to the Federal Rules of Civil Procedure, should be limited to a “one question, one fact” format. This means that each interrogatory can only ask for one fact, like “What are the days you worked on?” and not “What are the days you worked, as well as times and frequency of your shifts.” The usage of compound questions will result in objection by the responding party, and possible discovery sanctions if the court determines your improper usage amounts to an “abuse of discovery.”

Some states allow the usage of form interrogatories. California, for example, has Judicial Council-approved form interrogatories that one can use to get all the basic information they need based on what type of lawsuit is filed, and are typically free from objections by the responding party. In terms of limits, the Federal Court limits interrogatories to 25, while California allows 35 and more if a declaration explaining why more are needed is filed.

Requests for Admissions

Requests for Admissions are very similar to interrogatories, but serve a different purpose. Requests for Admissions are designed to establish what exact issues are settled and not in question. They are helpful in that they provide each party with issues that they do not have to argue, because they are settled and unquestioned. This allows the court to save time in settling issues, and not have to evidence presented on everything involved if the parties agree on those issues. The Federal Rules of Civil Procedure limit the topics to

  • Facts, the application of law to fact, or opinions about either and
  • Genuineness of documents received or presented.

The request for admissions takes the format of a declaration, which the responding party can admit, deny, or object based on particular legal reasoning. For example, in the employment “wage and hour” case, a Request for Admission may be something like “Admit that you were paid on a weekly basis” or “You did not receive payment for the Month of January.” These questions will allow the parties to firmly know, if the responding party admits, that the employee was paid on a weekly basis, or that the employee wasn’t paid in January.

Once a responding party answers the requests for admissions, those admissions will become part of the records and held as true unless the judge withdraws them or allows the party to amend them.  Like interrogatories, the Federal Rules of Civil Procedure does not have a limit on requests for admissions, with California limits 35 in state courts.

Document Requests

Document Requests, or Requests for Production, are used to gather any sort of documents or items that may be relevant for the case at hand. The party asking for discovery will provide guidelines and topics in their Requests for Production, designed to receive documents relevant to the lawsuit.

“Requests for Production” serve the purpose of gaining information and evidence vital to your lawsuit that you likely do not having in your possession or have ready access to. In the “wage and hour” employment example, a “Request for Production” may include pay stubs, time cards, clock in/out slips, or any piece of documentation that you or the company may have that would help support each side’s claim.

Requests for documents also occur in deposition requests. These requests are often accompanied by what’s known as a “subpoena duces tecum.” This is simply a Latin term that roughly translate into bringing any and all documents related to the deposition. Essentially, any documents discoverable and not privileged that are used for deposition preparation should be turned over.

Depositions and Examinations

Depositions are often used if facts come to light thru other discovery methods that require further explanation or clarification by one party. The Federal Rules of Civil Procedure typically allow, as a maximum, one day of deposition per witness, which amounts to seven hours of total deposition time. Depositions must be noticed in advance and should be scheduled at the convenience of all parties. In state courts, such as California, the deposition time frames will vary rarely be greater than the Federal limits, unless good reason is shown that longer time frames are required.

Examinations often include physical or mental examinations. These types are usually only allowed if a person’s physical or mental state are brought into questions based on the lawsuit at hand. Examples of physical examination would include car accident victims claiming extensive damage, medical malpractice claims, or any claim relating to physical injury incurred. Mental examinations are usually required when a party is claiming a defense of mental defect or often in custody hearings evaluating the fitness of a parent.

Importance of a Lawyer during the Discovery Process

While the discovery process seems manageable after these brief descriptions, it should not be navigated alone with the help and advice of an experienced lawyer. Missteps in the discovery process can lead to court fines and sanctions against you. Furthermore, failure to respond to discovery will result all admissions against you being answered in the affirmative, or you having your discovery requests limited.

Having an experienced lawyer will ensure that all discovery can be conducted in an efficient and proper nature, and that you become entitled to all areas of information to support your side of the case. While discovery is not meant to be used to a tactical advantage, going alone with the aid of a lawyer will often result in the other side exploiting your answers and getting you locked into admissions you may not have wanted to be in. An experienced lawyer will ensure that you answer only the relevant and legally allowed questions, and that you turnover all evidence that must be, while protecting any privileged materials.