The Basic Methods of Discovery

INTRODUCTION

The last chapter considered broad conceptual issues raised by the right of discovery in civil litigation. This chapter addresses more practical, “how-to” issues that arise in using the rules of discovery to develop the facts of cases.

As the previous chapter indicates, modern procedure, unlike traditional practice, is premised on wide access to information possessed by adversaries and third parties before trial. Under the federal discovery rules, parties may obtain almost all information in the other side’s hands before the case is tried. Ideally, broad discovery makes trial a matter of clear, orderly presentation of evidence known to all litigants. It also encourages settlement by educating the parties about the strengths and weaknesses of their cases.

The discovery process is conducted by counsel for the parties with the court sitting as a referee to adjudicate disputes that arise during the exchange. Under the original Federal Rules, the process was driven entirely by discovery requests; that is, counsel had to ask for information or testimony; if they didn’t ask for an item, they didn’t get it. If an appropriate request was made, the opponent generally had to respond, but there was no provision for automatic exchange of information. This basic premise was changed by the 1993 amendments to the Federal Rules, which introduced some “automatic disclosure” requirements for the first time. Fed. R. Civ. P. 26(a). For the most part, however, discovery remains an antiphonal process, under which a litigant who wants information sends a request for discovery to her adversary, who either provides the necessary information or raises an objection to doing so.

The basic devices for seeking discovery in federal court are interrogatories under Fed. R. Civ. P. 33, requests for production of documents under Fed. R. Civ. P. 34, and oral depositions under Fed. R. Civ. P. 30. Each of these is discussed in turn below. Although state practice may differ, the Federal Rules provide a representative example of a discovery system.

INTERROGATORIES

Interrogatories are probably the most frequently used form of discovery. Plainly put, they are questions propounded by one party to another, seeking information relevant to the issues in dispute. In practice, of course, they are not written by the parties; they are drafted by counsel for the requesting party, who is experienced at framing interrogatories to extract the required information as fully as possible.