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 |E Discovery Segment Home| |Clinic Quickplace|
 
General Introduction   to Discovery
 
Electronic Discovery Issues
 
Statutes and Cases
Web Resources
 
 
Video by Daniel Lim of  Guidance Software
Video Presentation  with Powerpoint (68 minutes)




 

      General Introduction to Discovery

Discovery is one phase of litigation that occurs prior to trial.   Discovery can take place in both criminal and civil proceedings, but the issues surrounding electronic discovery are primarily focused on civil litigation. 

The objective of discovery (by electronic means or through paper) is to uncover facts. These facts serve as the foundation for the development of a trial strategy (or perhaps a  motion for summary judgment).  Essentially all evidence presented through testimony or demonstrative evidence presented at trial, the preparation for cross examination, or direct examination of witnesses is first developed through discovery prior to going into the courtroom.

Types of Discovery Devices

(source: American Law Encyclopedia)

  • Depositions

    A party to a lawsuit may obtain an oral pretrial examination of an adverse party or witness—the deponent—who is under oath to respond truthfully to the questions. This interrogation is known as a deposition or an examination before trial (EBT). The notice or order of examination must specify the particular matters to be discovered, and the line of questioning is usually restricted to such matters. However, the scope and extent of the examination is within the discretion of the court.

    In some jurisdictions, a deponent may bring along documents to refresh his or her memory and facilitate testimony. Such materials can be used only when relevant to the line of questioning to which the deponent is subject and only by the designated deponent.

  • Interrogatories                                                                      

    Interrogatories are specific written questions submitted by a person, pursuant to a discovery order, to an adversary who must respond under oath and in writing. Interrogatories must state questions in a precise manner so as to elicit an answer that is pertinent to the issues being litigated.  
  • Production and Inspection                                                           

    A litigant is generally entitled to the production and inspection of relevant documents in the possession or control of an adversary pursuant to discovery. The applicant must have a reasonable belief that such evidence is necessary to the lawsuit if discovery is to be granted.
     
  • Requests for Admissions of Facts

    A party may ask an adversary to admit any material fact or the authenticity of a document that is to be presented as evidence during the trial. This procedure, called a request for an admission of fact, facilitates the fair and efficient administration of justice by minimizing the time and expense incurred in proving issues that are not in dispute.

    Only facts, not matters or conclusions of law or opinions, can be admitted when there is no disagreement between the parties. The requesting party does not have to make a motion before a court prior to making such a demand but must comply with any statutory requirements. The matters or documents to be admitted must be particularly described and there must be a time limit for a reply. The response should admit or deny the request or explain in detail the reason for refusing to do so—for example, if the request calls for admission of a MATTER OF LAW. Failure to make a response within the specified time results in the matter being admitted, precluding the noncomplying party from challenging its
     admission during the trial.
     

  • Physical Examination                                                                    

    A mental or physical examination of a party whose condition is an issue in litigation may be authorized by a court in the exercise of its discretion.