What is the Discovery Stage in Civil Litigation?
How Civil Discovery under the Law Can Help You Win Insurance Claims and Personal Injury Lawsuits
If you tendered an insurance claim or filed a lawsuit in federal or state court, you have probably heard the term “discovery” more often than you can count.
Discovery is the lifeblood of civil litigation.
The facts, testimony, documents, and videos obtained during the discovery stage affect the outcome of litigation involving torts, intentional conduct, negligence, contracts, and occupational injuries (workers comp).
Indeed, the success of pretrial discovery and how the court resolves contentious discovery disputes often decide whether the case settles or goes to trial.
But what is discovery in law?
And how does discovery affect the outcome of litigation?
This article answers these questions and supplies an overview of the discovery process, focusing on civil actions for personal injury.
Keep reading to learn more about planning a strategy for discovery in civil litigation.
I hope this information helps you pursue (or resist) discovery in a manner that increases the likelihood of negotiating a favorable personal injury settlement after a car accident, obtaining workers comp benefits, or winning your case at trial.
What is Discovery?
Discovery is the dominant force in civil litigation, with the evidence it produces often dictating (or at least encouraging) outcomes before trial.
In law, discovery is the pretrial process where a party to an action discloses certain information and documents relevant to the lawsuit’s subject matter to the opposing party.
Though informally investigating the facts is one way to discover helpful evidence, “discovery” usually excludes informal investigation methods.
Instead, discovery refers to the various legal devices available under civil procedure rules to find information to prove your claim and discover what evidence the opposing party may use to defend the case.
What are the Purposes and Goals of Discovery?
Discovery has several general purposes:
- Preparing the parties for trial
- Encouraging pre-trial settlement because the parties will have more information to assess the range of outcomes at trial. For example, you might realize that your claim is stronger or weaker than you thought after receiving new documents in discovery.
- Guarding against trial by ambush because there should be no surprise evidence
- Expediting litigation by narrowing the issues through disclosing undisputed facts that serve as the basis of stipulations or motions for summary judgment.
Your specific goals in conducting discovery will differ depending on whether you are the plaintiff/claimant or the defendant in the legal matter and what information you already possess.
But generally, you can achieve discovery’s purposes by using the process to:
- Get and preserve the evidence and information needed to prove your claims or defenses
- Learn what evidence (witnesses, documents) the opposing party may present at trial
- Guage how witnesses will present at trial and determine if the jury will find them credible
- Secure admissions and stipulations (agreements) to serve as the basis for a motion for summary judgment or to present at trial
- Create issues of fact if you are concerned the opposing party may move for summary judgment
- Perpetuate witness testimony in case the witness becomes unavailable to testify at trial
- Authenticate documents for use at trial
- Get information and documents to add causes of action to the case.
- Obtain the facts needed to frame the legal issues and present the theory of your case during settlement talks or trial by jury or judge (a bench trial)
- Create evidence to impeach the credibility of hostile witnesses and the opposing party at trial.
What Rules Govern Discovery in Litigation?
Rules mandate the types of discovery allowed and the information you must provide upon the other litigant’s request in discovery.
These rules may come from several sources.
For example –
The Federal Rules of Civil Procedure 26 through 37 govern pretrial discovery in federal courts.
Part Four of the Rules of the Supreme Court of Virginia controls pretrial discovery in state courts in Virginia. These rules are similar to the federal discovery rules.
And Rule 1.8 of the Rules of the Workers Compensation Commission addresses discovery in workers comp claims in Virginia.
In addition, I recommend reading the Local Court Rules and Standing Orders for the jurisdiction where you filed your lawsuit.
Further, review pretrial discovery orders entered by the judge in your case.
But despite federal and state courts and administrative tribunals such as workers compensation commissions having discovery rules meant to increase cooperation, fights over what information parties must turn over are common.
What is the Scope of Discovery? Exploring for Evidence
Civil discovery is broad in scope.
You may obtain discovery about any matter relevant to the subject matter of the lawsuit, including any claim or defense.
The information sought in discovery need not be admissible at the trial if reasonably calculated to lead to the discovery of admissible evidence.
In other words, you can get information that does not have relevance to the disputed issues, so long as you can show that the information might help you find relevant evidence. This broad scope is why discovery is often called a “fishing expedition.”
However, there are exceptions to these general rules on discovery’s scope.
For example, the opposing party does not have to produce privileged information requested in discovery.
In addition, any party may ask the court for a protective order limiting the extent of discovery methods.
Generally, the court will review the other discovery requests and answers in the case, the amount in controversy, the complexity of the claims, and the importance of the issues to determine if:
- The discovery sought is unduly burdensome (expensive or time-consuming) or
- The discovery requested is unreasonably cumulative or duplicative
A “yes” answer to either inquiry could result in a court order limiting discovery.
What Information is Discoverable in Litigation?
Generally, a party must disclose the following types of evidence in civil actions:
- The name and contact information of every person likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses
- A copy of all documents, electronically stored information, and real evidence (tangible things) that the disclosing party possesses or controls and may use to support its claims or defenses
- A list of each category of damages claimed by the disclosing party, including the papers supporting the computation
- Witnesses who may testify at trial (including lay and expert witnesses)
In addition to these types of evidence, you may also obtain (or have to produce) the following items if the other party shows a substantial need for the information and undue hardship:
- Witness statements
- Investigative reports
- Data generated for litigation
What are Privileged Communications Protected from Disclosure in Discovery?
Discovery is intrusive.
Some defendants use the discovery devices to harass and embarrass the plaintiff in a personal injury case, prying into their personal lives and seeking information about past health conditions, hygiene, sexual practices, religious beliefs, family relationships, and employment history.
You can, however, avoid giving this information if such information is privileged.
Generally, state law governs privilege in a civil case.
The following types of information and items may be privileged against discovery under your state’s statutes and court rules:
- Attorney-Client Privilege: Communications between you and your attorney are privileged from discovery.
- Attorney’s Work Product: Discovery procedures do not open an attorney’s files to opposing counsel. Therefore, materials your attorney prepared for litigation and trial are usually exempt from discovery. This category includes investigative reports, witness statements, personal notes on thought processes, legal opinions, and strategic advice.
- Experts: Information, data, and opinions from expert witnesses who were consulted but will not testify at the trial might be privileged.
- Marital Communications (Husband-Wife Privilege): A person has the privilege to refuse to disclose and to prevent anyone else from disclosing any confidential communication with their spouse during their marriage.
- Mediators: There is a statutory privilege of confidentiality applying to memos, documents, and communications relevant to mediation in Virginia.
- Physician-Patient Privilege: Communications between you and your doctor are protected from discovery unless your physical or mental health is an issue in the case.
- Priest-Penitent Privilege: Communications between you and a regular minister, priest, rabbi, or accredited practitioner of any religious organization or denomination usually referred to as a church are protected from discovery.
- Reporter’s Privilege: Journalists have a limited First Amendment right against disclosing confidential news sources in court.
- Self-Incrimination: You cannot be forced to give evidence that may result in your criminal conviction.
But remember, if you claim privilege, you must tell the opposing party you are doing so.
And you must describe the nature of the documents, communications, or withheld items in a privilege log.
When is Discovery Available?
Pretrial discovery under the applicable civil procedure rules is available in all civil actions, including lawsuits and claims for bodily injury.
Different discovery rules apply to criminal cases.
For example, the prosecutor must voluntarily give the defendant any potentially exculpatory information.
When Should I Start the Discovery Process?
I recommend starting pretrial discovery as soon as you can.
The discovery rules have many deadlines.
And a delay in using the discovery devices available may bar you from getting important information to win your case.
What is the Court’s (Judge’s) Role in Discovery?
You do not need the court’s approval to start the discovery process.
The discovery rules intend to reduce the court’s (and judge’s) role in discovery.
Attorneys and litigants, however, have frustrated this intent.
Generally, judges get involved in the discovery process when the parties disagree on the scope of discovery, privilege claims, and the validity of objections to interrogatories and deposition questions.
Do I Have to Wait for the Opposing Party to Start and Finish Discovery Before Conducting My Own?
No.
The parties may engage in discovery at the same time.
What are the Tools of Discovery in Law?
You have several discovery devices available to get information and documents from the opposing litigant and third parties.
And you do not have to pick one type of discovery tool to use.
You may use the discovery types in any sequence as part of your pretrial discovery plan.
These discovery methods include:
- Initial Disclosures
- Entry on Land/Inspection
- Physical and Mental Examinations
- Request for Admission
Let’s take a look at each type of discovery method.
Depositions on Oral Examination
During an oral deposition, you can question the opposing party or a witness under oath and face-to-face.
A court reporter will transcribe the testimony, which you can use at trial for several purposes, such as cross-examining or impeaching credibility.
You may also take a person’s deposition upon written questions.
But I do not recommend it.
Other discovery devices are more effective.
Entry on Land/Inspection
You might want to inspect the property (parking lot, store, warehouse) if you have a premises liability lawsuit (slip and fall) or a workers comp claim.
Interrogatories to Parties
You may submit written questions to any other party.
Interrogatories are a relatively inexpensive way to get information for the trial.
But they have weaknesses.
For example, you cannot serve interrogatories on non-parties.
And the opposing party’s attorney may be able to evade answering or disclosing all the information you want.
Check the discovery rules for your particular court to determine how many interrogatories you can submit to another party.
For example, in Virginia, you cannot submit more than thirty written interrogatories, including all parts and subparts, without the court’s permission.
In contrast, federal courts limit you to 25 interrogatories, including all subparts.
Physical and Mental Examinations
The defendant will likely ask you to submit to a physical or mental examination, commonly called an Independent Medical Examination (IME) or Defense Medical Examination (DME), when you seek compensation for personal injuries.
Requests for Admission of Facts and Genuineness of Documents
A request for admission is a written question asking the opposing party to admit or deny specific facts or the genuineness of documents you might want to admit into evidence at the trial.
The request to admit’s purpose is to obtain binding admissions on elements of the claim for use at trial.
For example, you may request that the defendant driver admits to specific acts that would constitute negligence in a personal injury lawsuit.
Requests for Production of Documents and Things
The request for production gives you access to documents (letters, emails, electronically stored information) and items (defective parts, machinery) you may need to prove the claim.
In addition, you have the right to test specific objects.
For example, you may want to inspect and test the defective product in a product liability lawsuit.
Subpoenas
A subpoena orders the opposing party or a witness to show up to a specific location at a particular date and time (such as a deposition, hearing, or trial) or to produce certain documents for inspection.
Do I Have to Conduct Discovery in My Lawsuit?
No.
You are not legally obligated to use discovery methods to obtain information and valuable evidence for your claim.
But not conducting discovery is often a mistake, even in simple matters.
How Do I Enforce Discovery?
You may need to be proactive to overcome the defense attorney’s efforts to delay and stonewall your discovery requests.
If this happens to you, I recommend taking two steps:
The judge assigned to your case will hear the parties’ arguments on the discovery motion and issue an order.
Generally, the party resisting discovery bears the burden of proving its position.
Is Information Admissible at Trial if it is Discoverable?
No.
At trial, you can object to the admissibility of evidence you must hand over during discovery.
How Much Does Discovery Cost?
Discovery in litigation is expensive.
Indeed, a frequent criticism of the discovery process is that personal injury lawyers (and other plaintiffs’ attorneys) impose high costs on defendants in discovery to force settlements.
Discovery costs depend on the number of:
- Depositions you need to take or defend
- Disputes over relevancy, the burden of production, or validity of objections
- Documents (including emails) to produce or review
- Expert witnesses consulted or asked to testify
Generally, discovery in workers comp and auto accident claims range from $500 to $40,000.
However, discovery in medical malpractice, product liability, and business tort claims is more expensive because more expert testimony is needed and more documents exist.
Can a Case Settle Before or During the Discovery Stage?
Yes.
Many cases settle before or during the discovery process because the parties want to avoid the additional expense or have enough information to predict the likely trial outcome.
Can a Case Settle After Discovery?
Yes.
In my experience, most civil actions and workers comp claims settle after some discovery is complete.
The parties want discovery to test the strength and weaknesses of the claims and defenses.
This information encourages settlement talks.
Hire a Top-Ranked Attorney to Fight Discovery Battles and Get the Evidence You Need to Win
Though it is not as entertaining as the trial, the discovery process significantly impacts litigation strategy and your case’s outcome.
You might want to ignore the discovery rules or not use them to their full effect, instead focusing on your day in court.
But failing to uncover critical evidence can harm your claim.
Instead of learning and applying the discovery rules while trying to heal, contact a top-rated trial lawyer to handle these tasks.
Our firm will work with doctors, surgeons, accident reconstruction engineers, vocational experts, life care planners, and economists to get all available damages in your injury case and overcome the conflicting evidence.
Call now so we can start pursuing justice for you and your family.
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