Legal Disclaimer: This article provides general information for educational purposes only and does not constitute legal advice. Laws vary by jurisdiction and change frequently. For advice specific to your situation, consult a licensed attorney in your area.
Discovery is the legal process of gathering evidence and information from the other side before trial. It's one of the most powerful aspects of litigation - you can compel the other party to hand over documents and answer questions under oath. The U.S. Courts website provides official information about civil case procedures.
Small Claims Note: Small claims courts typically don't have formal discovery. You just show up with your evidence. This guide covers regular civil court discovery.
Discovery Purpose
Why Discovery Exists
- Prevent trial by ambush
- Let each side know opponent's evidence
- Narrow issues for trial
- Encourage settlement with full information
- Preserve testimony
What You Can Discover
- Any relevant, non-privileged information
- Documents in other party's possession
- Witness information
- Expert opinions and reports
- Information that could lead to evidence
Discovery Methods
Interrogatories
Written questions requiring written answers:
- Sent to other party
- Answered under oath
- Usually limited (25-30 questions typical)
- Response deadline (30 days typical)
- Good for basic facts
Requests for Production
Demand documents and things:
- Contracts and agreements
- Emails and communications
- Financial records
- Photographs and videos
- Electronic data
Requests for Admission
Ask other party to admit facts:
- Admitted facts don't need proof at trial
- Streamlines issues
- Can eliminate need for certain evidence
- Failure to respond = admission
Depositions
Oral questioning under oath:
- Live testimony recorded by court reporter
- Can question parties and witnesses
- Very powerful but expensive
- Can be used at trial
Deposition Costs: Depositions can cost $500-$2,000+ for court reporter, transcript, and video. Consider whether the expense is justified for your case.
Interrogatories in Detail
What to Ask
- Identity of witnesses
- Basis for claims/defenses
- Damages calculation
- Insurance information
- Expert witnesses
- Relevant documents
Answering Interrogatories
- Answer truthfully under oath
- Investigate before answering
- Object to improper questions
- Don't volunteer extra information
- Meet deadline or request extension
Document Requests
Typical Documents Requested
- All contracts between parties
- All communications about dispute
- Financial statements
- Policies and procedures
- Photos and diagrams
- Electronic records
Responding to Requests
- Search thoroughly for documents
- Produce what's requested
- Object to overbroad requests
- Assert privilege if applicable
- Don't destroy anything
Spoliation Warning: Once litigation is anticipated, you must preserve all potentially relevant documents. Destroying evidence - even accidentally - can result in severe sanctions.
Depositions
Preparing for Deposition
If being deposed:
- Review all relevant documents
- Understand the facts of your case
- Practice answering questions
- Tell truth - you're under oath
- Listen carefully to each question
- Answer only what's asked
Taking a Deposition
If questioning someone:
- Prepare detailed outline
- Start with background questions
- Build to key issues
- Use documents strategically
- Pin down testimony
Deposition Tips
- Don't guess - say "I don't know"
- Pause before answering
- Ask for clarification if unclear
- Don't argue with questioner
- Keep answers short
Discovery Objections
Valid Objections
- Relevance: Not related to claims
- Privilege: Attorney-client, etc.
- Overbroad: Too sweeping
- Burdensome: Unreasonably expensive
- Vague: Unclear what's requested
How to Object
- State specific objection
- Explain basis briefly
- Still answer if possible despite objection
- Meet and confer about disputes
Privilege
Protected Information
- Attorney-client: Communications with lawyer
- Work product: Attorney's mental impressions
- Spousal: Marital communications
- Doctor-patient: Medical (limited)
Privilege Log
- List documents withheld on privilege
- Describe without revealing content
- State basis for privilege claim
Waiver Warning: Privilege can be waived by disclosure. If you accidentally produce privileged documents, immediately notify the other side and demand return. Courts may protect inadvertent disclosure.
Discovery Disputes
Resolving Disagreements
- Meet and confer (required usually)
- Try to resolve informally
- File motion to compel if needed
- Court orders compliance or rules on objections
Sanctions
Consequences for discovery abuse:
- Order to respond
- Attorney fees
- Facts deemed admitted
- Evidence exclusion
- Dismissal or default (extreme)
Discovery Timeline
Typical Schedule
- Begins after initial pleadings
- Lasts 3-6 months typically
- Cut-off date set by court
- Extensions possible but not automatic
Key Deadlines
- Response to written discovery: 30 days
- Expert disclosure deadline
- Discovery cut-off
- Motion filing deadline
Discovery Strategy
Effective Discovery
- Focus on what you actually need
- Start with documents before depositions
- Use interrogatories to identify witnesses
- Save depositions for key testimony
- Consider cost vs. benefit
Resolve Before Discovery
Discovery is expensive. A demand letter can settle your dispute much faster and cheaper.
Create Your Letter