For any of you out there involved in a lawsuit, whether it be a divorce, business dispute or personal injury action, you have probably heard lawyers throw around the term “Discovery”. The term is all encompassing and as such, can be confusing. For the personal injury Plaintiff who suffers through a voluminous set of interrogatories, he or she defines discovery as interrogatories. For the divorce Defendant involved in equitable distribution litigation, who was subjected to a deposition at the hand of opposing counsel during the discovery phase, discovery is a deposition. For the Plaintiff in a business dispute whose lawyer subpoenaed records from the Department of State, that subpoena equals discovery. All of these individuals are correct. Discovery is the term used to describe the fact finding process involved in litigation. The first opportunity to engage in discovery is to aid in preparation of a Complaint. If a Plaintiff needs certain limited information to prepare an adequate Complaint to be filed with the Court, that Plaintiff is entitled to that certain limited information. Typically, that information might involve a contract identifying parties and their responsibilities. It is not to be used as a fishing expedition.

Typically, in civil litigation, after the pleadings have closed (documents prepared by each party and filed with the Court identifying their positions), the discovery phase begins. A party might want to first serve written discovery requests to sort through many of the general issues. That written discovery typically includes interrogatories and a request for production of documents. A request for production of documents is self explanatory (documents of one party that the other party requests to review). Interrogatories are a series of questions drafted by one party directed to another to discern certain information which is relevant to the case. The interrogatories cannot be overlybroad, burdensome and/or irrelevant. They must be related to the matter at hand and be sufficiently narrow so as to prevent a fishing expedition. A responding party is given 30 days to respond to the interrogatories, although to be honest, answers are rarely provided within that time frame. Often times, the party who has served the interrogatories must follow up and may be forced to file a motion to compel ordering the responding party to answer the interrogatories and/or request for production of documents.

There is also the deposition. Picture back in the days of LA Law where a deposition was an exciting and glamour proceeding where an articulate lawyer would be so artful and question the witness in such an expert fashion that the witness would crumble and admit facts which would make the questioning lawyer’s case a virtual success. To be honest with you, rarely does this happen. Depositions are a fact finding proceeding. Typically, they are held in the deposing attorney’s conference room amongst the other attorneys involved in the case. While the parties are allowed to attend, they often choose not to. (Better things to do.) Questions are asked and it is important that the deponent give verbal answers. Rarely are there theatrics (there are some long winded attorneys who can make the proceeding quite boring and there are also theatrical attorneys who forget that a jury is not observing). These depositions give the deposing attorney an opportunity to learn facts surrounding the case and also to size up the party being deposed; will that person make a good impression and be sympathetic to a jury?