Discovery In General

Discovery is a process by which the parties to lawsuits explore the facts, circumstances, evidence, and arguments of each other‘s case. The purpose of discovery is to provide each side with full knowledge of the facts and documents prior to trial. Contrary to popular belief, the courts frown on ``trial by surprise.’‘ Rather, the courts expect each side to come into court knowing as much as possible about the opposing side’s evidence and arguments. As the Texas Supreme Court has stated, cases should be decided on the basis of what the facts reveal, not on the basis of what is concealed. As a result, your answers to discovery sent to you must be complete and truthful.

During discovery we can evaluate the effectiveness of opposing witnesses and counsel, and prepare our strategy. Of course, while we are evaluating the other side‘s positions, they are evaluating ours. Information received during discovery can also help us determine whether settlement is a viable option, and it can help us determine what type of settlement is satisfactory if it proves to be the best option.

It is therefore essential that we proceed with discovery in an effective manner. I will help you prepare your discovery responses, but I will need your assistance in gathering the necessary information and in preparing the responses. Your participation in the discovery process will be vitally important to the success of your case.

Discovery Level

This lawsuit has been initially placed in a specific Discovery level which controls which type of discovery is allowed in the lawsuit. In Texas there are three discovery levels, each allowing a different amount of discovery.

Discovery Devices

The rules that govern lawsuits provide a number of different discovery techniques. For instance, there are requests for disclosure, oral depositions, written interrogatories, requests for production, and requests for admission. Some of these devices will require written answers from you, some will require that you provide the other side with documents or other tangible things, and some require that you and other witnesses give sworn testimony before a court reporter. All of these discovery devices require that the answers be truthful and complete, and you will be required to swear to or verify all of the answers that you give. Discovery must be answered unless it is not within the proper scope of discovery or involves a matter that is privileged from discovery, such as communications protected by the attorney-client privilege or trade secret information. I will briefly explain the discovery devices, and will then go into the parties’ duty to cooperate during discovery.

Parties routinely send ``requests for disclosure.‘’ Requests for disclosure require the receiving party to provide certain information without objection. These items include: the correct names of the parties to the lawsuit; the name, address, and telephone number of any potential parties to the suit; the legal theories and general factual bases of the responding party‘s claims or defenses; the amount and method of calculating damages; the name, address, and telephone number of persons with knowledge of relevant facts and a brief statement of the person’s connection with the case; information on experts expected to testify at trial; all discoverable indemnity, insurance, or settlement agreements; statements of witnesses; and medical information.

A ``deposition on oral examination‘’ is similar to giving testimony at a trial, although a deposition does not occur in a courtroom. The person whose deposition is taken, called the deponent, is placed under oath and questioned by the attorney for the party who scheduled the deposition. Any attorneys representing other parties to the case are also entitled to be present and ask questions. Of course, the attorney representing the deponent is also there to protect that person‘s interests and to object to any improper questions or tactics. There is no judge, but a court reporter will be present to record the testimony. The deposition may also be videotaped, as well as being recorded stenographically, if the party scheduling the deposition requests.

``Interrogatories’‘ are written questions sent by one party to another. You or your corporate representative will be required to verify the answers to the interrogatories.

As the case develops, we will probably receive and send ``requests for admissions.’‘  Requests for admissions ask the receiving party to admit certain facts, and take them out of controversy.

``Requests for production’‘ ask that a party produce certain documents or other tangible items relevant to the lawsuit so that the other side can inspect or copy them.

Duty of Cooperation

Lawyers have a duty to cooperate in the discovery process; we can be severely penalized by the court if we do not respond honestly and promptly to reasonable discovery requests or if we abuse the discovery process in any way. In recent years, many judges have lost patience with uncooperative lawyers and clients, and have taken an active approach towards imposing sanctions. Sanctions for discovery abuse can be imposed on both the lawyer and the client, and possible sanctions include monetary fines and, for extremely abusive behavior, pleadings can be stricken from the case and claims can be dismissed or a default judgment can be rendered. We must be sure that we cooperate during discovery, and provide full and complete responses to any discovery we receive. However, let me make clear that this duty to cooperate is not a duty to volunteer. While we will certainly give honest answers to reasonable discovery requests, we will not provide any information that is not clearly requested. Let me also assure you that we will do our best to protect privileged information.