Preparing for Trial: Discovery

After the pleading step of the case is over, the next step is for both sides to collect and send each other information about the case to prepare for trial. This is called discovery. Some things to do to get ready for trial can be done on your own, like talking to people who may be your witnesses at the trial, taking pictures, or gathering certified copies of records. But most discovery is formal and has rules to follow. Call the Court and speak to a Clerk or visit a Court Help Center, if you have questions. Formal discovery requires the parties to show their evidence to each other before the trial if asked to do so. The discovery asked for must be connected to the claims in the case. Discovery information is not filed with the court.

 

Interrogatories

Interrogatories are numbered written questions sent to the other side. The other side answers each numbered question with the same number for the answer and swears to the truth in front of a notary public. The other side has 20 days to send back the answers if the interrogatories were sent by mail, unless the other side follows the rules to object to the interrogatories.

 

Depositions

At a Deposition, also called an Examination Before Trial or EBT, questions are asked in person. The person being deposed answers the questions under oath, like at a trial. Unless, there is an objection to the question. If this happens, the parties can call the Judge’s chambers in the case and see if they can get a decision about whether the question has to be answered. A stenographer must be at the deposition to record every word that is said. After the deposition, the stenographer types all the questions and answers into a written document called the transcript.

In order to have a deposition, one side sends a Notice of Deposition form to the other side. The Notice of Deposition says the name of the case, the index or docket number, and when and where the deposition will take place. Depositions can be held in an attorney’s office or at the courthouse. A person can follow the rules to object to the Notice of Deposition.

 

Subpoenas

A subpoena requires one side to give records to the other side to inspect, or requires a person to testify. Read Preparing for Trial: Evidence to learn more about subpoenas.

 

Objecting to Discovery

A party can object to a discovery demand if he or she thinks that the information asked for has nothing to do with the case, or is not clear, or asks for way too much information that is not needed. The objection is made to the court by written papers called a motion or an order to show cause. The court papers should say all the reasons that the person thinks the discovery demand is wrong. The objection to discovery must be made before the time to answer the discovery demand. Read How to Ask the Court for Something to learn about motions and orders to show cause.

 

Ignoring Discovery Demands

If a party does not answer a discovery demand, the other side can ask the court to order the party to do so. This is done in writing by making a motion or an order to show cause. The papers should tell the court what the discovery demand was made and how much time has passed. The court can order a party to answer a discovery demand. If the party ignores the court’s order to answer the demand, the other side can ask the court to punish the party. This is done by making a motion for contempt. The court has the power to punish the party for ignoring its order and can even dismiss the case, or strike an Answer. Read How to Ask the Court for Something to learn about motions and orders to show cause.

If a party tries to submit evidence at the trial that should have been shared with the other side during discovery, the court can refuse to allow the evidence into the case.