If you have ever been involved in the litigation process, or even around someone else who has, you may have heard references to “discovery” or “the discovery process.” But what does it really mean, and do you have to worry about it in a personal injury case? In this article, we will answer your discovery questions.
What Is Discovery?
Discovery is a procedural process through which parties to a lawsuit can obtain (i.e. discover) information about their lawsuit from one another and from third parties. In older times, before the creation of the discovery process, parties often conducted their trials with only limited knowledge of the evidence on which the opposing party would rely.
Because parties would keep all their evidence close to the vest and “spring” it at the time of trial, the other party would be unprepared to respond, creating what is sometimes called “trial by ambush.” Thus, at least one rationale for the discovery process is that trials will be fairer and focused on the real issues if the parties have advance access to all the evidence. Keep in mind that in this article, we’re discussing the rules applicable to civil litigation, which includes personal injury cases. Criminal cases have different rules.
Are There Any Limits on the Information that Can Be Requested?
Discovery applies to information that is “reasonably calculated to lead to the discovery of admissible evidence.” Thus, the information does not have to be admissible evidence, but there does have to be a relationship to the case such that the information, even though not admissible, could reasonably be expected to lead the requesting party to admissible evidence.
Additionally, the law protects some information, even if it would otherwise be discoverable. For example, privileges, such as attorney-client and psychiatrist-patient, apply. Additionally, a party can seek protection if the discovery is intended to annoy, embarrass, or harass a party. Sometimes, the parties disagree on whether requested information falls within these various definitions. In those cases, a judge must make the final decision.
Forms of Discovery
There are multiple forms of discovery. Here, we will not address them all, but here’s a link to the Oregon Rules of Civil Procedure, where all of the forms of discovery are discussed. Below are three discovery tools commonly used in litigation:
- Depositions – in a deposition, a lawyer gets to ask an opposing party or witness questions. The person being deposed (the deponent) must answer under oath and the entire deposition is taken down by a court reporter, just like in court. The court reporter later transcribes the deposition and it can usually be used at the trial of the case. Depositions of parties can sometimes be quite lengthy and cover a lot of ground. Lawyers use depositions for two primary purposes – (1) to learn everything possible about the case and the deponent; and (2) to “pin down” the deponent so that it is later much more difficult to change his or her story. A party should always seek legal representation before submitting to a deposition.
- Requests to Produce – a request to produce is a written document which requests that the recipient produce documents to the requestor. These documents could be a multitude of things, such as: photographs of the accident or injuries; accident reports; medical records; tax returns; pay stubs; documents supporting claims of lost wages; medical bills; and many others. These documents are carefully studied to prepare the case for trial.
- Requests for Admission – one party can ask the other to admit certain facts in an effort to narrow the scope of the issues in the litigation. For example, the plaintiff could ask the defendant to admit that he or she caused the accident. Sometimes, a defendant will make this admission, but deny the accident was the cause of all the plaintiff’s injuries. The parties would then know that liability for the accident is no longer an issue for the trial.
Call with Questions
If you are involved in litigation and have questions about discovery, give us a call. Whether you are a victim of medical malpractice, a semi-truck accident, an automobile accident, or any other wrongdoing, the discovery process will play an important role in your case. And remember, discovery can be complicated, and cases can be won or lost during this stage. Our experienced personal injury lawyers deal with discovery every day and will be happy to help you out.