Discovery & Discovery Materials
Discovery is a phase of litigation that occurs before trial. Although discovery can happen in criminal and civil cases, electronic discovery issues most often arise in civil cases.
The goal of discovery (whether done electronically or on paper) is to uncover facts. These facts form the basis for creating a trial strategy (or perhaps a motion for summary judgment). Thus, before entering the courtroom, virtually all evidence presented through testimony or demonstrative evidence, as well as the preparation for cross-examination or direct examination of witnesses, is developed through discovery.
Types of Discovery Materials
Depositions are sworn statements in which an attorney answers questions while a court reporter records everything spoken. Depositions might last anywhere from an hour to all day, or even in rare cases over more than one day. Although every lawyer has their own strategy for depositions, there are three main reasons to take them: to lock individuals into their testimony, to discover what evidence the other side has, and to conduct a “practice trial,” (observing how a witness will appear and behave in front of a judge or jury).
If you are deposed, your attorney will tell you what they need from you, but there are two things to consider. First and foremost, never guess. A deposition aims to provide facts, not to speculate on what could have happened. Even if it makes you feel self-conscious to say it, “I don’t know” is sometimes the best response. Second, while it is natural to want to explain things so that your listener understands, you should resist this urge. It is your opponent’s responsibility to obtain the answers. It is your responsibility to simply respond to the question that has been posed, not to provide more information than is requested.
A deponent may be requested to disclose copies of documents as part of a deposition.
Interrogatories are specific written questions that a person may to submit to an adversary to answer under oath and in writing. Interrogatories must ask specific questions to elicit a response that is relevant to the issues being litigated.
Inspection and production
Under discovery, a litigant is generally entitled to the production and inspection of relevant documents in an adversary’s possession or control.
Requests for Facts to be Acknowledged
A party may request that an adversary admit any material fact or the authenticity of a document that will be used as evidence at trial. This procedure, known as a request for admission of fact, aids in the fair and efficient administration of justice by reducing time and money spent proving non-controversial issues.
Before making such a demand, the requesting party does not need to file a motion with the court but must follow any statutory requirements. The matters or documents to be admitted must be described in detail, and a deadline for a response must be set. The response should either accept or deny the request or explain why it is not possible. Failure to respond within the specified time limits results in the matter being admitted, which prevents the noncomplying party from challenging it during the trial.
A court may authorize a mental or physical examination of a party whose condition is the subject of litigation in the exercise of its discretion.
Things to Remember When It Comes to Discovery
- Keep in mind that anything and everything will most likely come out at some time during the discovery process.
- You must tell your attorney the truth about any facts or documents that may surface. If you don’t tell them everything, they won’t be able to do the greatest job possible.
- Discovery can be time-consuming, costly, inconvenient, and infuriating. If you don’t want your life to be investigated in this way, you should think twice about filing a lawsuit.
- Be sincere. Nothing will make you lose a case faster than lying in discovery and being found, and if you are intentionally dishonest, you will almost certainly be caught.
For more information on discovery materials in New Hampshire law, Call Cohen & Winters at 603-224-6669.