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
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
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
American Law Encyclopedia)
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
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 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
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.