open book

Once a personal injury lawsuit gets underway, the lawyers involved start gathering information for their clients’ respective cases. This investigative process is called discovery because it sometimes exposes facts and documents that were previously not known, at least to one of the parties to the lawsuit.

Discovery takes place outside of a courtroom, and allows the parties to exchange written as well as oral information about a case. If the parties cannot agree over what information should or shouldn’t be provided in discovery, a judge will resolve the dispute.

Types of Discovery

There are roughly four types of discovery devices used in personal injury lawsuits, including:

  • Depositions — face-to-face questioning of the other party or a witness under oath, whose answers are recorded for later use at trial.
  • Requests for production of documents — one party asks the other for physical evidence relating to the lawsuit, such as contracts, employment files, school records, medical records, and the corresponding medical billings.
  • Interrogatories — written questions one party sends to the other to be answered under oath for the purpose of later use at trial.
  • Requests for admission — one party asks the other to admit, under oath, that certain facts are true in an effort to narrow the issues that have to be decided at trial.

What Can Be Asked for During Discovery?

The information requested during discovery is generally quite broad, and usually includes:

  • Facts about the case, including anything a witness or party saw, heard, or did
  • The identity of anyone who may have knowledge of the matter
  • Documents relating to the case, such as medical records and insurance contracts
  • Inspection of physical objects or property relating to the dispute
  • The personal, educational, and professional background of parties and witnesses

The basic rule of discovery is this: a party may obtain any information that pertains, even slightly, to any issue in the lawsuit, as long as the information is not privileged.

Limits on Discovery

Although almost any piece of information that has even the faintest connection to a lawsuit may be discoverable, there are limits. Under law, no one can be required to divulge verbal or written information that has been exchanged within any of the following relationships:

  • Husband and wife
  • Lawyer and client
  • Doctor and patient
  • Religious advisor and person seeking spiritual counsel

The rights of third parties, such as witnesses, co-workers, or family members, are typically given more protection than are those of the parties, and courts often put limits on how much can be revealed about someone who isn’t a party to a lawsuit. The rationale behind this is that people who didn’t bring the lawsuit shouldn’t be overly burdened by it.

The Negative Impact of Discovery

Discovery has been criticized because it can be used by the parties to effectively drain each other’s finances by making information requests that are both expensive and time-consuming for the other side to fulfill and make it necessary to sometimes produce thousands of documents of questionable relevance to a particular case.

Although tort reform advocates often charge that such tactics are used by plaintiffs’ lawyers to impose costs on defendants to force settlements and avoid the cost of discovery, both plaintiff and defense attorneys have been accused of discovery practices that manipulate, distort, and conceal information — the exact opposite of the actual purpose behind discovery.

Image by DonkeyHotey.

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