June 2020

Discovery In A Lawsuit Explained

What is Discovery?

When a party files a lawsuit in Texas, one of the first things that usually happens is that the court issues a Docket Control Order. Contained in that order is a schedule of events the judge requires to be timely completed by specific dates. One item on that list is referred to as discovery.

Discovery is a process. There are generally two major types of discovery. There is written discovery and then there are depositions. Written discovery includes Request for Disclosure, Interrogatories, Request for Production, and Request for Admissions. The types include written requests for information, responses, and to produce certain documents or tangible things that are served on a party to a lawsuit. Depositions are used to obtain sworn information directly from a party or a witness in person or by written questions. These are procedures that allow parties to fully prepare for a trial.

Request for Disclosure is a type of written discovery. This request is unique in that it is dictated in the Texas Rules of Civil Procedure. In most written discovery procedures, an attorney can make various objections to any item. This is not true of this type of discovery. The rules require a party to respond to this discovery without objections. The requests are basic and cover things such as fact witness information, expert witness information, and the legal and factual basis for all claims being made in the lawsuit. If a party does not timely respond in 30 days, a court can sanction that party.

Interrogatories are written questions directed to a party. The party has 30 days to serve objections and answers to the questions asked. The answers to the questions are under oath and a party serves a notarized verification that the answers are true and correct. Interrogatories are used to gain information about the party and what happened in the case. If any question is overbroad, vague or not relevant to issues in the case, the lawyer may make objections. The judge will rule on these objections later if the matter is urged by the other lawyer at a hearing. The sending attorney may file a Motion to Compel with the court and set the matter for hearing. At this hearing, the judge will decide whether the objection is valid. If so, the court will deny the request. If the objection is invalid, the court will grant the motion and order that party to fully respond without objection or the judge could limit the request and then order that a response be made with that limitation. The number of interrogatories to a party is limited to 25.

Request for Production is used to request a party to produce various documents or tangible items described in the request. There is no limit to the number of requests that can be made. The receiving party, or an attorney for the party, may also make objections as with interrogatories. The idea is to allow a party to obtain all relevant documents, photographs, drawings, videos, etc. that relate to the claims being made. This allows parties to obtain all items that might be used at a trial and be prepared for the use of such items. Any party may also ask the court to order another party to properly respond or withdraw invalid objections.

Request for Admissions is used to request a party to either admit or deny certain statements. For example, a party might request a plaintiff to admit or deny that he/she was drinking alcohol within a four hour period prior to the collision made the basis of the lawsuit. The plaintiff must admit or deny that statement within 30 days of the request. There is no limit to the number of requests that can be made. Very importantly, a party must timely respond to this type of discovery. If not, the rules say that all the statements are deemed admitted. Therefore, failure to timely respond can result in the party making an admission of a statement to a jury that otherwise would not be admitted. This can result in a harsh outcome at any trial.

A deposition is a process whereby a party deposes another party or a witness before a certified court reporter under oath. This is a much more expensive process. The deposition can be by video. In this manner, a party’s lawyer can quickly get information that is needed to prepare for trial. This also locks the deposed party or witness into a certain position. If the party or witness attempts to change their story at trial, the deposition can be used to impeach that person in front of a judge or jury. Depending on the type of case, a person may be deposed for an hour or up to several hours. A person can be subpoenaed to appear for a deposition.

There is also what is referred to as a Deposition by Written Questions. This deposition usually used to verify the authenticity of certain business records. The custodian of records of a business (such as a hospital) will answer the deposition questions under oath to a court reporter and provide the deposing party copies of the documents (medical records or bills) in question. In this manner, the records become authenticated and can be offered as evidence at trial.

In summary, discovery is a process utilizing various methods to obtain information to prepare for trial. There are rules using these procedures as set forth in the Texas Rules of Civil Procedure. The purpose of the procedures is to get to the truth and validity of claims being made by plaintiffs or defense claims being made by defendants. This development of evidence allows parties to see the case for what it is and enter into negotiations to settle the matter. It also allows parties to request the court to declare either that a case has no basis to go forward or perhaps there is so much evidence, the court could rule that the party wins the claim without going further. These are referred to as summary judgment procedures. Discovery is time-consuming, expensive, and is in large part the reason for many hours that an attorney spends on any given case. However, it is the nuts and bolts of preparation for a trial.