What is “Discovery”?

By Anna Din,
What Is Discovery?

You may have heard your attorneys throw around the word “discovery” or tell you that your case is in the discovery phase of trial. What exactly does this fancy word mean? Discovery is the process by which your attorney and the opposing counsel’s attorney get to gather information and evidence about the case to help them prepare for trial. Inevitably, the opposing counsel will find out certain facts about your case that you may not have wanted them to know, but the bright side is that your attorney will also collect material that will help your case. How is this done? Basically, there are five tools attorneys use to gather this material: interrogatories, requests for disclosure, requests for admissions, requests for production, and depositions.

Interrogatories: Interrogatories are written questions between both parties. In Texas, each party is allowed to ask twenty five written questions, and the opposing party is required to respond under oath. These are questions that are tailored to the facts of the individual case. The responses to these questions will help the attorney narrow down issues and strategize the best method of presenting your case in trial.

Requests for Disclosure: Requests for disclosure are similar to interrogatories, as they are also written questions. Unlike interrogatories though, these questions can be unlimited in number but are more generic and ask the opposing party to disclose specific information. This gives the attorney an idea of the opposing counsel’s game plan for trial, which of course allows the attorney to plan and prepare counter-arguments.

Requests for Admissions: Requests for admissions are also unlimited written questions asking the other party to admit or deny certain allegations or the truth of a specific matter. The responding party may state that they neither admit nor deny a request but must give a reason for doing so, such as they do not have proper information to respond or need to make a reasonable inquiry. As with all discovery requests, the party served must do their due diligence to respond to such requests.

Requests for Production: Requests for production are also written questions propounded upon to opposing party, usually asking to produce particular documents or tangible evidence. You may also request to inspect certain tangible evidence or documents. Examples of certain requests would be requesting copies of insurance or indemnity agreements, phone records, health records, etc. There may be possible privacy or confidentiality objections to certain requests. Sometimes the attorney will have to subpoena a party or a third-party (such as a service provider to get phone records) in order to get the documents/evidence in question.

Depositions: Depositions are probably the most nerve-wracking of all requests, because it requires the client or witness being deposed to be present. A deposition is a sworn testimony, usually conducted in person or occasionally by video/phone conference. It is much like an interview, where the attorney gets to ask questions. Usually depositions are stenographically recorded and sometimes even videotaped. This is a useful tool in gathering information, especially when videotaped because attorneys may can see when a witness hesitated to answer specific questions, cried, or made inaudible gestures. As a client, you may be deposed by opposing counsel. Your attorney will generally prepare you for such a deposition by going over questions you may be asked. It is alright to tell opposing counsel that you do not know the answer to a question or to ask for clarification, but you must respond to all questions asked unless your attorney makes an objection. Usually attorneys may only make limited objections at depositions, such as based on harassment or privilege.

Now that you know what discovery requests are, you will no longer be confused when your attorney tells you that she/he is conducting discovery. Our job, as attorneys, is to help prepare you in every way possible and make sure you understand all the details of your case. If you are ever confused, don’t hesitate to ask your attorney for an explanation.

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