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After the pleadings (complaint and answer) are closed, the parties collect the evidence on all sides of the case. In this section, you will learn:
- the types of discovery available to the parties,
- common terms related to discovery,
- strategies at the discovery stage.
Discovery & Pre-Trial
Discovery is used to gather information and to limit the issues to be tried. Instruments include:
- requests for production of documents
- requests for answers to interrogatories
- requests for admissions
- depositions
It is part of a larger Pre-trial period that may include motions in limine and motions for summary judgment.
Definitions
- Material — relevant, significant, having a logical connection to the merits of the case
- Protective order — a court order that prevents the discovery of certain information or the interrogation of certain witnesses
- Grounds for objection — reasons for a court to refrain from taking an action requested by the other side
More Definitions
- Affidavit — a written statement made under oath by a witness
- Summary judgment — a decision by a court to end a case when the undisputed facts are so one-sided that no trial is necessary
- Stipulation — an agreement between opposing parties that is presented to the court before a hearing or trial
- Pretrial hearing — a conference between a judge and opposing parties designed to reach agreement on the scope of matters to be tried
Success at the Discovery Stage
Discovery is successful when the evidence discovered supports a claim or defense or counterclaim, ideally eliminating the need for trial through summary judgment.
Pre-trial measures are successful when a court order limits the matters to be tried favorably
Plaintiff’s Strategy
Plaintiff’s strategy at the Discovery stage:
- elicits facts supporting elements of the claim
- elicit facts opposing elements of affirmative defenses
- elicit facts opposing elements of any counterclaims
A plaintiff should successfully insure all of these factors.
Defendant’s Strategy
Defendant’s strategy at the Discovery stage:
- elicit facts opposing the plaintiff’s claims
- elicit facts supporting affirmative defenses
- elicit facts supporting any counterclaims
A defendant should successfully insure at least one of these factors.
Your Strategy
Take a moment to think about what YOUR strategy should be at the Discovery stage.
- What facts are necessary to support the plaintiff’s claims?
- What facts are necessary to support affirmative defenses?
- What facts are necessary to support any counterclaims?
You should answer these questions no matter whether you’re a plaintiff or defendant in the case.
Transcript
It\’s me, Portia, again, and this is lesson four of civil litigation one zero one.
In this lesson, we\’ll define discovery, discuss the types of discovery available, look at strategies at this stage of the litigation, and review important definitions.
At this point, the complaint has been filed, and the defendant has responded with an answer, affirmative defenses, and or a counterclaim.
The pleadings are closed.
Now the discovery stage begins.
Pure and simple, discovery is information gathering where one side gets to see the other side\’s evidence.
Each and every party named in the complaint has the right to conduct discovery.
Parties in the case can gather information from various sources, witnesses, Facebook posts, items filed in their office, cell phones, and other sources.
But just because you can gather evidence from all these sources does not mean you should, as we will see in the next section.
Discovery is conducted through written questions called interrogatories, requests for admissions, or production of documents, or through oral depositions.
Interrogatories allow parties to ask questions of the other side, but the number of questions you can ask is limited, so be selective.
Admissions are statements asking another party to admit to facts by responding with admit or deny.
Pro se tip, be sure to answer each request for admissions. Because if you don\’t, all facts within will be deemed as true. Lawyers often use requests for admissions to pull a fast one on unsuspecting pro se litigants.
A party to a lawsuit is at a great disadvantage if all facts, as constructed by the other side, are admitted as true.
Use a request for production to obtain tangible items like pictures, letters, and email.
Depositions are witness testimonies under oath.
Litigants rarely use this form of discovery, but it can be very powerful.
When doing discovery, avoid the proverbial fishing expedition.
If your discovery request is not designed to elicit facts supporting or refuting an element of a claim affirmative defenses or counterclaim, the lack of relevance can be grounds for objection.
In other words, limit your discovery to the evidence that supports a claim, defense, or counterclaim.
Proper discovery might eliminate the need for trial and lead to a summary judgment.
The plaintiff\’s strategy at the discovery stage is to elicit facts supporting elements of the claim and refute elements of affirmative defenses and counterclaims.
The defendant strategy at the discovery stages to elicit facts, refuting elements of the plaintiff\’s claims and elicit facts supporting affirmative defenses and counterclaims.
Take a minute now to think about what your strategy should be at the discovery stage.
What facts are necessary to support the plaintiff\’s claims?
What facts are necessary to support affirmative defenses?
What facts are necessary to support any counterclaims?
You should answer these questions no matter whether you\’re a plaintiff or defendant in your case.
What facts might refute the plaintiff\’s claims?
What facts might refute the affirmative defenses?
What facts might refute any counterclaims?
You should answer these questions as well, no matter whether you\’re a plaintiff or defendant in your case.
Now, let\’s take a look at some important definitions.