The plaintiff has filed the complaint, and the defendant has responded. Now, it’s time to collect evidence. Discovery. Everyone’s heard the word, but not many people know what it means in a legal sense.
Simply put, discovery is the way to get the evidence you need on the record. Done right, it can place you in a good strategic position. Through requests for admissions, requests for production of documents, requests for interrogatories, and witness depositions, the parties can collect an abundance of evidence. Motions to compel, protective orders, and notices of depositions and of serving subpoenas are added in a mess of mind-boggling and contentious court maneuvers.
Discovery is all of this.
At a time allowed by statute, either party can begin discovery. It doesn’t have to be the plaintiff or an attorney, as some might believe. You, as a pro se litigant, can get the ball rolling. In fact, if you know your opponent is wary of answering questions, deliver the first few punches with discovery.
What do you send to your opponent? Depends on your strategy.
Do you want to get facts on the record that you and your opponent don’t dispute?
Send the request for admissions. The request for admissions is a list of statements asking an opponent to admit or deny certain facts. If you get a request for admissions, be sure to respond to it in a timely manner, even if you’re late responding to the other requests. Items not answered on this request might be deemed admitted. Once a party “admits” to something, he can’t come back later and testify to the opposite. In that case, the opponent can impeach him. That is, the opponent can call into question the party’s truthfulness.
Do you have questions that are best answered by your opponent, such as names and contact information for witnesses, bank accounts, insurance coverage, and so on?
Send the request for interrogatories. Interrogatories are written numbered questions. Oftentimes, there is a limit to how many interrogatories you can ask, so choose strategically. You can collect any information reasonably calculated to lead to admissible evidence. The recipient should truthfully answer or object separately and in writing to each numbered question. Interrogatories can be the basis for witness impeachment at trial if responses are less than truthful.
Do you think the information you need is in documents and other stuff?
Send your opponent a request for production of documents (and things). The request for production of documents is exactly what it sounds like. It requests from the recipient various documents, letters, emails, faxes, reports, etc. “Things” could be a thumb drive, audio or video recordings or other physical evidence. As a recipient, if you don’t object to a request, then you must comply fully with it.
Do you need to put someone on the hot seat, not allow them much time to think about answers, and ask almost unlimited questions?
A deposition is what you’ll need. Depositions are recorded witness testimonies under oath and before trial. To “order” the witness to deposition, you must issue a subpoena. Depositions are formal and cost a lot more money than the written forms of discovery. They can be contentious and may require judicial intervention.
As a recipient of discovery requests, there’s one thing to remember. For each form of discovery, you can object on the basis that the request or question is irrelevant, calls for privileged information, is conclusory, burdensome, over-broad, and so on.
The bottom line: Get as much out of your opponent as you can while holding back as much as the law will allow, and get it all on the record.
Discovery blog topics
Sites with Lists of Objections (These are but a few)