Question

Discuss the types of discovery available to the parties in civil cases and their advantages and disadvantages.

Answer 1

Discovery is the pre-trial phase in a lawsuit in which each party investigates the facts of a case, through the rules of civil procedure, by obtaining evidence from the opposing party and others by means of discovery devices including requests for answers to interrogatories, requests for production of documents and things, requests for admissions, and depositions.

Under the laws of the United States, civil discovery is broadly construed and parties to a civil action can ask for virtually any material which is reasonably calculated to lead to the discovery of admissible evidence. This is a much broader standard than simply relevant evidence, because it contemplates the exploration of materials and testimony that may not be directly relevant itself, but that could lead to the discovery of other evidence that would be relevant.

However, discovery is not without limits. Certain types of information are generally protected from discovery, including information which is privileged (such as attorney-client communications, trade secrets, and conversations between spouses) and the work product of the opposing party and his attorney. Other types of information may be protected, depending on the type of case and the status of the party. For instance, juvenile criminal records, certain medical and psychiatric records, etc.

Electronic discovery or "e-discovery" refers to discovery of information stored in electronic format (often referred to as Electronically Stored Information, or ESI).

Types of Discovery:

Requests for Admissions

Just as the name implies, requests for admissions ask another party to admit or deny certain carefully worded questions. For example, one party may ask the other to admit certain specific facts related to a car accident that would tend to prove that party's liability. Since parties are asked to admit or deny allegations in the original document that starts a lawsuit, usually called the complaint or the petition, requests for admissions may seem redundant. But, when properly used, they allow a party to delve deeper into issues beyond those required to state a cause of action, such that certain reasonable inferences can be drawn as a result of the answers obtained.

Interrogatories

Unlike requests for admissions, interrogatories ask open ended questions. For example, one may ask the other party to identify all evidence upon which they intend to rely in support of their claims or defenses. Interrogatories can become quite complex with multiple sub-parts, so most states limit the number of interrogatories either party can ask the other.

Requests for Production

Arguably one of the most useful tools for discovery, requests for production allow one party to ask the other to provide documents or other tangible evidence, including electronically stored information. This is the process used to actually obtain most of the physical evidence that the parties will rely on when they move toward trial. Requests for production can also be directed to non-parties and obtained through a subpoena. In more complex cases, documents and things that are responsive to requests for production can be immense, filling entire warehouses, and this procedure can often become a very expensive element of many cases.

Depositions

Depositions are the process of taking live testimony from witnesses and parties before trial. The witness or party is required to appear and testify under oath before a court reporter who records the entire proceeding. These proceedings are usually done in an attorney's office with representatives of both or all of the parties in attendance. While the testimony and questioning are governed by the usual rules of evidence, with no judge present to rule on any objections, they are usually just recorded by the court reporter and dealt with later if the testimony is introduced at trial.

Discovery is a very complicated process and definitely warrants the assistance of an attorney. While many small claims cases will have little or no discovery, few other parts of a civil action can be more time consuming, complicated, and critically important to the outcome of a case than discovery. So, when in doubt, seek the assistance of a competent, experienced attorney to guide you through the discovery process.

It clearly benefits the courts officials (especially when they can reject a cases because it was not filled using the proper writ), as it tends to render litigation more formal. It also benefits the parties who know the law, or who could hire lawyers to do the work. But in mixed systems (continental civil law) that adopted elements you have to see how the ideas became bastardised, to say so and have negative consequence. Formalism of law, already strong, enhanced. Access to justice restrained (indirectly of course, but very efficiently). People who generally ignore the law or too poor to hire lawyers, dropping litigation in high numbers. And so on…Basically you have legal systems extending without limits in theory ‘rights’ (without any extra expenses for courtrooms, judges salaries, etc).