Discovery

Discovery devices used in civil lawsuits are derived from the practice rules of EQUITY, which gave a party the right to compel an adverse party to disclose material facts and documents that established a CAUSE OF ACTION. The federal rules of CIVIL PROCEDURE have supplanted the traditional equity rules by regulating discovery in federal court proceedings. State laws governing the procedure for civil lawsuits, many of which are based upon the federal rules, have also replaced the equity practices.

Discovery is generally obtained either by the service of an adverse party with a notice to examine prepared by the applicant's attorney or by a court order pursuant to statutory provisions.

Discovery devices narrow the issues of a lawsuit, obtain evidence not readily accessible to the applicant for use at trial, and ascertain the existence of information that might be introduced as evidence at trial. Public policy considers it desirable to give litigants access to all material facts not protected by privilege to facilitate the fair and speedy administration of justice. Discovery procedures promote the settlement of a lawsuit prior to trial by providing the parties with opportunities to realistically evaluate the facts before them.

Discovery is contingent upon a party's reasonable belief that he or she has a good cause of action or defense. A court will deny discovery if the party is using it as a fishing expedition to ascertain information for the purpose of starting an action or developing a defense. A court is responsible for protecting against the unreasonable investigation into a party's affairs and must deny discovery if it is intended to annoy, embarrass, oppress, or injure the parties or the witnesses who will be subject to it. A court will stop discovery when used in bad faith.

Information Discovered Pretrial discovery is used for the disclosure of the identities of persons who know facts relevant to the commencement of an action but not for the disclosure of the identities of additional parties to the case. In a few jurisdictions, however, the identity of the proper party to sue can be obtained through discovery. Discovery pursuant to state and federal procedural rules may require a party to reveal the names and addresses of witnesses to be used in the development of the case.

Discovery is not automatically denied if an applicant already knows the matters for which he or she is seeking discovery since one of its purposes is to frame a PLEADING in a lawsuit. On the other hand, discovery is permitted only when the desired information is material to the preparation of the applicant's case or defense. Discovery is denied if the matter is irrelevant or if it comes within the protection of a privilege.

Privileged Information Privileged matters are not a proper subject for discovery. For example, a person cannot be forced to disclose confidential communications regarding matters that come within the ATTORNEY-CLIENT PRIVILEGE. Discovery cannot be obtained to compel a person to reveal information that would violate his or her constitutional guarantee against SELF-INCRIMINATION. However, if a party or witness has been granted IMMUNITY regarding the matters that are the basis of the asserted privilege, that party can be required to disclose such information on pretrial examination.

A person who refuses to comply with discovery on the basis of an asserted privilege must claim the privilege for each particular question at the time of the pretrial examination. An attorney or the court itself cannot claim the privilege for that person. However, a person may waive the privilege and answer the questions put to him or her during discovery.

Objections A party may challenge the validity of a pretrial examination if asserted prior to trial. The merits of such an objection will be evaluated by the court during the trial when it rules on the admissibility of the evidence. If the questions to be asked during a discovery, such as the identity and location of a particular witness, pose a threat to anyone's life or safety, a party can make a motion to a court for a protective order to deny discovery of such information.

Refusal to Respond Failing to appear or answer questions at an examination before trial might result in a CONTEMPT citation, particularly if the person has disobeyed the command of a subpoena to attend. If discovery is pursuant to a court order, the court will require that the party's refusal to answer questions be treated as if the party admitted them in favor of the requesting party. Such an order is called a preclusion order since the uncooperative party is precluded from denying or contradicting the matters admitted due to his or her intentional failure to comply with a discovery order.