We typically get a lot of questions from our clients about the discovery process. What is it? How does it work? What’s the point? What exactly are we trying to discover? Read on to learn a little more about the discovery process.
What is Discovery?
Discovery is a process that attorneys use to find information on the opposing party that will help support a lawsuit that you (the client) have brought to them. The purpose of discovery is to find any and all relevant information needed to prove your case or to deny the charges that have been filed against you. Together, you and your attorney will come up with a list of people who may have information or a list of documents that could be important to your case. Discovery helps make a trial less of a poker match (wondering who’s bluffing and how high they’re willing to raise the stakes) and more of a fair contest with all the facts laid out from the start.
How does it work?
There are several ways a party can go about asking their opposition for facts concerning a case. The most common discovery devices (or types of discovery) are:
- Interrogatories: written questions that may be asked of the other party with responses required to be in writing and under oath. These answers can be used as evidence by the other party at trial. Interrogatories are limited to 30 questions.
- Depositions: a party and witness (can be a member of the opposing party) answer questions orally and under oath. Court recorder and attorney fees make oral depositions pretty expensive. For that reason, oral depositions are typically reserved for cases where there are a lot of discrepancies between parties.
- Request for Production of Documents: these allow one party to request documents from another party. The other party is required to make any documents that are in his/her possession or control available for copying. Even documents that are not physically in a party’s possession but are within his/her control (such as banking records or medical records) must be made available for copying. There is no limit to Requests for Production of Documents.
Other less frequently used devices include written depositions, requests to enter land or property, requests for mental or physical examinations and requests for admissions.
The court will usually order that all discovery be completed by a certain date and time. In some jurisdictions, the court will ask the parties to agree to deadlines for completing discovery. If you need more time to complete your discovery responses, you may ask the opposing party for an extension, but be sure you get their agreement to extend in writing.
What is “Discoverable”?
Maryland Rules encourage broad discovery, meaning information that is not privileged and relevant to the subject matter of the case is discoverable. Information may be privileged (or not discoverable) under certain circumstances. The most common are attorney-client privilege and the work-product doctrine.
- Attorney-client privilege: protects all communication between an attorney and his/her client
- Work-product doctrine: protects documents and tangible items prepared by another party in anticipation of trial. The opposing party can overturn this privilege if they are able to prove a hardship or has a substantial need for the materials being protected. Even if it is overturned, courts must still protect the mental impressions, conclusions, opinions or legal theories of a party’s attorney or outside representative concerning the case.
All types of information may be discoverable, including (but not limited to): documents (contracts, deeds, photos, etc.), electronically stored information (emails, text messages, accounting statements, etc.), tangible items (clothing, accessories, cars, etc.), and witnesses.
The discovery process is a two-way street. If you ask for “discoverable” information from your opponent in the proper way, your opponent must share that information with you. Likewise, if your opponent asks you for “discoverable” information the proper way, you must share it with them.
Let Us Help
Work closely with your attorney during the discovery process to be sure you’re staying on top of deadlines. If you receive a discovery request, do not ignore it! Let your attorney know as soon as possible. Be timely in your response; even if you can’t meet the deadline, be prompt about requesting a reasonable extension. Resist the urge to withhold information in an attempt to “surprise” the other party.
If you are in the midst of a trial or think you may be headed in that direction, give the attorneys at Ferrante, Dill and Hisle LLC a call today. Let our experienced and knowledgeable attorneys navigate you through the discovery process. Give us a call today at (410) 535-6100 or send us an email to firstname.lastname@example.org.