How does the discovery process work?
Discovery is a pretrial process by which one party reveals, at the opposing party's request, relevant facts and documents pertaining to the litigation. Discovery takes three basic forms: document production, depositions (asking questions of witnesses), and interrogatories (written questions).
Discovery helps parties find evidence to support their positions (claims) and learn what evidence the opposing party has in support of its claims or defenses. In discovery, both plaintiff and defendant can ask for, and are entitled to receive and examine different types of documents, reports, DVDs, tapes, and other materials that the opposing party has.
In addition to production of documents, discovery also involves depositions (pre-trial testimony of a witness or a party in a legal proceeding), and written interrogatories (written answers to questions, made under oath). Discovery is governed by the Rules of Civil Procedure and the Rules of Evidence. A good resource for various Pennsylvania Rules is Jenkins Law Library's Resource Page.
Note that there are certain types of information that do not have to be disclosed. You may be able to invoke a privilege (a legal right not to testify) and refuse to provide certain documents or answer certain questions. For example, commonly recognized privileged information includes the attorney-client privilege (aimed to protect statements you make to your attorney), doctor-patient privilege (aimed to protect statements made to a physician by a patient), inter-spousal (aimed to protect statements between husband and wife), and the Fifth Amendment privilege against self-incrimination. The Fifth Amendment to the U.S. Constitution applies in criminal cases but generally not in civil cases.
The specific Pennsylvania Rules of Procedure governing discovery may be found here.
What do depositions involve?
At a deposition, the opposing parties and witnesses, after being placed under oath, respond to questions. An attorney asks questions and the questioned individual responds. The testimony is taken down by a court reporter. A transcript of the testimony can be prepared for a fee.
What if a witness does not want to appear to testify at a legal proceeding like a deposition or hearing?
You are entitled to have subpoenas issued to witnesses by the judge, through the Clerk’s Office. Subpoenas compel individuals to appear at a hearing or a deposition at the specified time and testify. Once a subpoena is served on witnesses, they must appear for legal proceedings, such as depositions and hearings, even if they don’t really want to. In addition to the requirement of the witnesses’ physical presence at the deposition or hearing, a special kind of subpoena can also require witnesses to bring relevant documents that you requested.
Please note that the earlier you have the subpoenas issued and served on witnesses, the better the chances they will be able to make arrangements to adjust their work or personal schedules accordingly.
A subpoenaed individual who fails to appear without cause may be charged with contempt of court and as such may be subject to civil or criminal penalties.
Can I send questions to my opponent to be answered in writing?
Yes, you can. In fact, for discovery purposes, any party in the litigation may send written questions (“interrogatories”) to another party. Interrogatories require a written response made under oath. This is one of the most widely used forms of discovery.
Interrogatories seek to discover what the opposing party knows (including the facts the opposing party has learned from others) and what information the opposing party can reasonably obtain and rely on in a lawsuit.
In contrast to depositions where both the litigants and witnesses must respond to questions, interrogatories are addressed only to litigants.
You can object to questions you are asked in interrogatories, and until the Court decides on the validity of your objections, you will not have to answer them.
Interrogatories are less expensive than depositions. The number of questions that can be presented to the opposing party is limited (usually to 25). Also, the form of these Interrogatories is controlled by the Pa. Rules of Civil Procedure and local court rules.
What if my opponent has a medical condition that is relevant in the case?
The Court may order a party whose physical or mental condition might be at issue in the case, to submit to a physical or mental examination by a licensed or certified examiner (the examined party can get a copy of the report upon request). The examined party must also provide any prior reports of examinations for the same condition, and waive confidentiality of the testimony of his/her examiner about the condition he/she was examined for.
Disclaimer: PMC does not provide legal advice or represent clients in court or other legal proceedings. This guide is created solely to help individuals navigate the courts. It does not serve as a substitute for legal advice and should not be interpreted as such.
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