What Is Discovery?
What Is Discovery?
In the 1940s, federal courts began requiring what’s known as “disclosure” of any case’s relevant documents, facts, and other information before a trial begins. This is intended to reduce the element of surprise during a trial proceeding. Called “discovery,” the disclosure of facts is usually falls into depositions, the production of documents, or written discovery. It should be noted that there are state and federal rules known as “protective orders” that can protect your business’ trade secrets or proprietary knowledge.
A deposition is a sworn statement in which an individual answers an attorney’s questions. A transcript is made at that time by a court reporter. The time it takes to complete a deposition varies greatly depending on the complexity of the case and the line of questioning, and can take as long as a week or longer or be over in less than an hour. The reasons for taking a deposition are also varied, but some reasons are to “nail down” people’s retelling of events, to find out what the opponent knows, or to see how a potential witness might react to similar questions in court. If you are to be deposed, the attorney will tell you what to expect and what he or she wants to hear from you. The most important things to remember are to answer the questions you’re asked simply and directly. Resist the urge to explain your answer. Don’t help your opponent by explaining; let the opposing lawyer ask more questions to get a fuller answer. Don’t guess. It is okay to say, “I don’t know.”
Both parties to a lawsuit have the right to look over any documents that might even potentially relate to the case at hand. Document production is often most seen in lawsuits involving businesses, and there can be a lot of documents requested. Most attorneys are usually willing to come to your offices or place of business to go over documents and make copies of what they will need. As the digital age has progressed, more and more courts are permitting access to computer documents and files during discovery. In some cases, courts have even allowed for the retrieval of deleted documents, but this is not a typical occurrence. In cases where digital files may be important, courts have become more and more cynical regarding a business’ reluctance to produce digital files or claims that they are unable to produce such documents, especially in this day and age where back-ups have become standard.
Written discovery usually entails either written declarations or what is known as interrogatories. Written declarations are rarely employed, but, in the right situation, they can be influential. Put simply, a party is asked to either deny or admit a fact. There are consequences for not answering, for not being truthful, or even for not answering on time. Interrogatories are written answers to questions regarding the facts of the case. They can be wide-ranging or detailed, depending on the circumstances, and your attorney can walk you through which questions are objectionable, as questions on interrogatories often are.
In discovery, almost everything will be revealed, and, because of that, it is very important that you are honest with your attorney about everything that happened, about what documents will say about what happened, and what others might say about the event. If you don’t disclose absolutely everything to your attorney, the job of representing you will become quite difficult.
Discovery often feels invasive. It can be frustrating and time consuming. Discovery can also cost money. These aspects might influence your decision about whether or not to file suit, so it’s important that you are aware of them.
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