All of the legwork in gathering facts and evidence for a case is known as "discovery." While each court may have different discovery rules, the basics are the same.
Discovery is the act and procedure of gathering every bit of evidence and information, no matter how trivial it may appear, from both parties involved as well as others outside of the suit. It can be information about the facts of the case, documents that may be important to the case, background information on the parties involved, names of others who might know more -- pretty much anything. Information from a conversation that would never be admitted in court can be part of the discovery process. The justification for this is that it might be possible to gain true evidence as a result of the knowledge gained from a discussion among the defendant, witnesses, or others related to the case.
There are some things, however, that are protected (privileged). While these vary greatly from state to state, here are some that might apply:
- Conversations between spouses are sometimes privileged because of the importance of free communication between a husband and wife.
- Conversations between doctors and patients are sometimes privileged, unless the plaintiff is suing for personal injury.
- Conversations with religious counselors are sometimes privileged.
- Certain financial information can be privileged.
To save time and money, some judges may require that each side of the lawsuit turn over all basic information it has regarding the case. In addition to this, attorneys gather information through requests for production of documents, requests for admissions, depositions, interrogatories, and requests for independent medical examination (IME). The judge will often schedule conferences during the discovery stage. These can cover things like the status of discovery (i.e., whether it is moving along as it should be), settlement potential (i.e., whether there is a chance for settlement at this stage), or resolving any discovery disputes that may be arising.
Motions also can be filed if any of the discovery requests are not being met. For example, a motion for more responsive answers can be filed. This type of motion requires documentation of each discovery request, the response, and the reason the response is inadequate.
- In the request for production of documents, each attorney requests documents that will help him prove his case. These documents can include business records, traffic or police reports, or anything else that might apply.
- Requests for admissions are requests your attorney will make of those involved on the other side of the suit to state under oath that certain facts are true or untrue. This is to save time and money gathering evidence to back up facts that are either obvious or prove that documents are authentic.
- Interrogatories are questions the attorneys prepare to send to the other party to answer. The answers to these questions can become part of the sworn testimony used in the case, so they are very important. It's part of your attorney's job to help you answer these questions -- not to tell you what to say, but to make sure you only answer the question being asked and that you answer it fully.
- Depositions are interviews the attorneys have with witnesses or anyone else who may be able to provide information for the case. They are the most important part of discovery, because here the attorneys find out what the opposition is going to say in his testimony, as well as assess his ability as a witness. When someone is questioned (known as being deposed), attorneys from both sides can attend and ask questions. A critical part of all depositions is that the witnesses tell the truth -- untruths (even minor ones) can come back to haunt them at the trial. Juries focus on those kinds of things. A witness's credibility can be weakened when even minor discrepancies crop up.
- Independent medical examinations (IMEs) are medical examinations by a physician who is not involved with anyone in the case, and has not treated the person having the IME. While fairly rare, IMEs are sometimes performed for cases involving some aspect of the physical condition of the plaintiff or the defendant -- personal injury cases, for example.
- Motions to quash may be filed if one party is trying to get protected information from the other party during discovery. If the judge allows the information to be admitted, then another motion (motion to seal matters produced upon discovery) can be filed.
If either party of the lawsuit doesn't provide information he is supposed to provide, then the judge can also impose a sanction against him. This means he will fined for not providing the information. The sanction can be against either the attorney or the client. It depends on which person is refusing to provide the information.