What Is Discovery

Discovery comes before a trial and is a part of a civil case where both sides try to “discover” what the other side knows about the case or about the other side’s history. If a suit is filed, discovery is both crucial as well as unavoidable. During the discovery process, both sides are able to learn about the strengths and weaknesses of each other’s case resulting in little to no surprise at trial. Learning about each other’s strengths and weaknesses can also help get the case settled before it goes to trial.

Tennessee has rules that govern discovery. These rules can be found in the Tennessee Rules of Civil Procedure 26. Georgia’s discovery procedure is governed by the Official Code of Georgia Sections 9-11-26 through 9-11-36.

What can each side discover? In essence, each side can discover anything that is relevant to the case or could lead to something that is relevant to the case excluding any information that is privileged. Some of the information sought in discovery during a personal injury lawsuit includes:

• Medical records
• Documents
• Identity of witnesses
• Identity of a witness
• Medical history
• Photographs of injuries.

What Is Privileged Communication?

Privileged communication must meet three requirements:

1. The person must speak or write something they thought no one else would see—an expectation of privacy.
2. The law considers the communication confidential, such as advice from a doctor, a confession to a pastor or a priest, or conversations between spouses.
3. One did not knowingly communicate the information to another person other than to someone the law deems a confidential communication.

How Does Discovery Actually Work?

There are four ways lawyers conduct discovery:

• Depositions

A deposition is when a witness to a case gives out-of-court testimony that is put into writing and later used in court. A deposition typically has a court reporter present as a representative of the court. The deposition usually takes place at the office of the court reporter or at one of the law firms representing a party to the case. Depositions serve two purposes: 1) To record the recollection of witnesses while the memories are still recent and 2) To give all sides of a case a fair preview of the evidence likely to be presented at trial.

• Interrogatories

An interrogatory is a written letter to the other side in a case, asking them to answer a question. Interrogatories are generally between twenty-five to thirty-five questions long, depending on the state. Although most interrogatories are expected to be tailored to each specific case, many of the questions are generic enough that they can be copied from case to case. In personal injury cases, for example, the questions may be as simple as “Describe the nature and extent of your injuries” or “List the number and names of each physician you visited to treat your injuries”.

• Request for Admission

A request for admission is a written letter submitted to the other side in a case, containing factual information to which the court can admit, deny or object. Like interrogatories, requests for admissions are generally limited to around thirty questions. Unlike interrogatories, requests for admissions usually come in the form of true or false questions. Requests for admissions presented to the court are assumed factual unless the judge allows the requests withdrawn or amended.

• Request for Production

A request for production is a written letter to the other side in a case, requesting specific books, documents, or physical items for inspection and copying. They are sometimes referred to as document requests, notices to produce, or demands for document inspections. Requests for production can also include certain electronic evidence, such as e-mails or hard drives. Requests can be denied if the requests would violate privileged communications. Parties presented with such requests can also respond and explain that the evidence requested is unavailable for certain reasons: for example, the documents suffered destruction, or the items in question are no longer in the party’s possession.

Do I Need an Attorney for Discovery?

If the point is reached in a civil trial where discovery is likely to occur, or a response is required to any of the tools of discovery, it is highly suggested that an attorney is contacted because they will be able to explain matters more comprehensively and help protect one’s rights.