My lawyer in my civil lawsuit keeps talking about discovery, but I’m embarrassed to ask what that is. In criminal cases, I know that the police investigate the crime, the prosecutor charges the defendant, and the trial decides the guilt or innocence. But what about a civil lawsuit?
In a civil case, it’s the opposite from criminal; the parties have to gather their own evidence through a structured process called “discovery”. A party files the lawsuit based on a sometimes limited, but good faith belief of the other side’s actions and then undergoes a structured process called discovery to gather the evidence before trial. The structure is contained in the rules of civil procedure and impacted by the rules of evidence. Of course, this is a gross oversimplification of the process, but you get the idea.
In civil disputes, each party has the ability in the discovery process to ask the other side for documents and information. Documents are obtained through Requests to Produce and nowadays can also include electronic records, like e-mails and social media posts. Other information can be gathered through written questions called Interrogatories or orally through a deposition or both. Parties can also verify certain facts by asking the other side to admit them in Requests for Admissions.
Sometimes, however, parties outside the lawsuit hold key information. Discovery may also be obtained from those third-parties or non-parties by way of a deposition or document request without deposition. But, Interrogatories and Requests for Admissions may only be directed to another party in the lawsuit. We refer to those involved in a civil suit as a “party” because they can be individuals or business entities.
Discovery takes time to complete because large blocks of time are built into our Florida Rules of Civil Procedure. For example, after sending a request to another party, you have to wait at least 30 days for a response and sometimes longer depending on the circumstances. Discovery requests can also sometimes require court action or uncover and lead to other information and evidence that is helpful to claims or yields and supports new claims. Oftentimes, this is why lawsuits take so long, but that is not always a bad thing because it allows parties to gain some perspective over the dispute as time goes by.
In sum, it is best for any party to get over the embarrassment of not knowing what discovery is and inquire of their attorney as to the purpose and plan of each action in discovery, if the attorney hasn’t already initiated that discussion.
About the Author
Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.davidsteinfeld.com. He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network, and was named to the 2014 Florida Super Lawyers List.
Additionally, Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation, the Florida Supreme Court Committee on Business and Contract Jury Instructions, and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee. He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America. In 2014, Mr. Steinfeld was made a full Professor of Law at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery. Informative videos and articles are available for free at http://davidsteinfeld.com.