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Demystifying Discovery

By Keith Stachowiak on December 2, 2013 // Leave a Comment

What is an interrogatory? What is a deposition? Are depositions similar to those depicted on TV? Now that you have filed suit in a civil action, you are probably beginning to ask your attorney some of these questions. Both interrogatories and depositions are part of the formal discovery process. The basic concept of the discovery process is for parties to the lawsuit to obtain information related to the case. While informal discovery began the moment you contacted your attorney and the attorney began information gathering, formal discovery does not begin until a lawsuit is filed. The discovery stage requires your participation and your attorney will help guide you through the process. This article contains a basic overview of the discovery process and attempts to demystify discovery by explaining each part, namely: interrogatories, requests for production, requests for admission, and depositions.

First, what is an interrogatory? According to Black’s Law Dictionary, an interrogatory is “[a] written question (usu. in a set of questions) submitted to an opposing party in a lawsuit as a part of discovery.” Black’s Law Dictionary (9th ed. 2009), interrogatory. In general, a party will draft a list of interrogatories to be answered by the opposing party. The party will answer the questions and the attorney representing the party will raise objections to any interrogatories. An objection is an opposition to the question and may not require an answer from the party. If no objection is raised, the party must answer the interrogatories. Some examples of typical interrogatories include the name and contact information of witnesses, any insurance covering the incident, citations issued after the incident, the injured party’s medical history, and other fact gathering questions relevant to the lawsuit. This discovery device is usually used early on in the discovery process.

Second, what is a request for production? Black’s Law Dictionary defines a request for production as follows: “In pretrial discovery, a party’s written request that another party provide specified documents or other tangible things for inspection and copying.” Black’s Law Dictionary (9th ed. 2009), request for production. Depending on the type of lawsuit, the opposing party may request photographs taken at the scene of the accident, copies of medical records, copies of insurance policies, receipts or records of repairs to property, and other documents. If the party or his or her attorney is in possession of the documents, they are required to turn them over to the other side. It is not unusual for requests for production to accompany interrogatories in the same document and to be used early on in discovery.

Third, what is a request for admission? A request for admission is “a party’s written factual statement served on another party who must admit, deny, or object to the substance of the statement. Ordinarily, many requests for admission appear in one document. The admitted statements, along with any statements not denied or objected to, will be treated by the court as established and therefore do not have to be proved at trial.” Black’s Law Dictionary (9th ed. 2009), request for admission. According to Wis. Stat. 804.11(1)(b), if a party fails to respond to requests for admission within 30 days, each is deemed admitted. While most requests for admission are denied, they are important discovery tools. In the event the requests are admitted, the party may be able to move for summary judgment, if the admissions include the elements in the claim. Requests for admission are not used as often as requests for production or interrogatories and are usually used later in the discovery process.

Lastly, what is a deposition? A deposition is “[a] witness’s out-of-court testimony that is reduced to writing (usu. by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (9th ed. 2009), deposition. Depositions are the most intimidating and time consuming part of discovery for an injured party. In federal courts, depositions are limited to one day and seven hours. In practice, it is not common to have depositions that long. In my practice, depositions are typically between one to three hours long. In a civil lawsuit, either party can request a deposition of the other parties in the lawsuit or of witnesses, experts, or other nonparties that are involved in the lawsuit. For purposes of this discussion, it may be helpful to use an example. Imagine there was a car accident and my client was severely injured. At the time of the accident, there was one witness. In order to better understand the circumstances surrounding the accident, I sent a subpoena to the witness and asked them to appear for a deposition. At the deposition, I will be given the opportunity to ask the witness questions and the entire conversation will be recorded. A court reporter will also be present to record everything that is said during the deposition and provide a copy of the transcript. After I finish asking the witness questions, the attorney for the opposite side will likely ask the witness questions as well. Some examples of questions asked during the deposition of the witness to an accident may be as follows: Can you tell me what you saw the day of the accident? How far away were you from the accident? What did you tell the police? Was anybody injured in the accident? While a deposition is not a formal hearing or trial, it is important for the person being deposed to tell the truth and not guess on the answers to the questions. The transcript or video recording of the deposition may be used later on at trial and the person’s credibility is in jeopardy if he or she tells one story at the deposition and another story at trial.

The discovery process is a valuable tool for creating a better understanding of the circumstances surrounding the subject of the lawsuit. While interrogatories, requests for production, and requests for admission may seem daunting at first, they are not something an injured person should fear. At this time during the lawsuit, the injured party does need to participate more actively as the case progresses, but it is important to remember your attorney will be there to help you along in the process. The discovery process is an important tool to help you with your case and while the legalese may be intimidating, this article is meant to help demystify the discovery process and put you at ease.

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