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Discovery is a term for the formalized exchange of information that occurs within the context of litigation. This is often a critical process for investigating all the facts in a case. Through discovery, each party can gain a better understanding of the facts in the case and, thus, of the strengths and weaknesses of a particular position. This increased understanding of the facts is gained in discovery through the mandatory disclosure of requested information. Information is commonly requested in discovery because it is in the possession or control of the other side at the time the discovery request is made. Information may be requested to supplement the requesting party’s own information, and to help that party develop the case further. In general, any information that would be relevant, or that would lead to relevant information, can be discovered, provided that the information sought is not otherwise protected against disclosure by privilege law. “Can be discovered” means that the other party is required to furnish the information, unless the party can come up with some accepted justification for not producing the information.
Discovery can be a very powerful tool in developing the facts in a case. If a party does not comply with proper discovery requests from his or her adversary, the court can compel disclosure and, in addition, order sanctions including attorney’s fees for the prevailing party if appropriate. Despite the potential usefulness of discovery, however, the process can also become extremely expensive and time-consuming. Moreover, the party wishing to frustrate discovery can often find ways to delay disclosure or to make disclosures that are not complete or not easy to organize and interpret. A party can also, legitimately or without just cause, seek to raise objections to discovery requests that will further drag out the entire process.
There are a number of methods permitted by the discovery rules, which can be used singly or in any desired combination. The rules permit the following discovery methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. These methods can be used in any desired sequence, unless the court has ordered a specific sequence. A party may carry on his own discovery regardless of whether the other party is also conducting discovery. In equitable distribution actions, the parties are required by statute to consult with the judge in a “discovery and scheduling conference.” At this conference, a proposed plan and schedule for discovery is worked out, along with any limitations if any on the discovery process in the particular case.
One of the most popular discovery methods is to take someone’s deposition. A deposition can be done upon written questions or orally, by telephone or in person. The person being deposed may be one of the parties, or the person may be a non-party. Questions are asked by the side taking the deposition, usually by a party’s attorney. The deposition is conducted under oath; if taken orally, it is recorded by a court stenographer present where the person being deposed (the “deponent”) is located. In addition to stenographic means, testimony at a deposition may also be taken by other methods, including videotape.
The answers to deposition questions can be used in court for various purposes. Quite often, the answers are used to impeach a witness at the trial who gives answers that are different, contradictory or inconsistent with the answers given by the witness at the deposition. Deposition answers can also be received into evidence in their entirety where the parties have agreed that a witness will not be called to the actual hearing. This often happens when the parties are accommodating a busy professional such as a physician, psychologist, or other expert. In such cases, the side “defending” in the deposition will take the time to cross-examine the deponent in some detail, as there will not be a later opportunity to conduct cross-examination of this particular witness. Depositions may also be used at trial where the witness has died, or the witness lives more than one hundred miles away from the place of trial or is out of the country or otherwise unavailable to testify.
Another method of discovery are written Interrogatories. One side puts together a set of questions, to which the other side responds. Interrogatories, unlike depositions, may only be directed to a party in an action. These questions might be more open-ended than Requests for Admissions. In North Carolina the total number of questions that can properly be posed in one or more sets of Interrogatories is fifty, and sub-parts count as separate interrogatories. The fifty maximum number may only be enlarged by agreement or by order of the court.
An example of three written Interrogatories would be the following question about a person’s employment (“state where you are currently employed, when you began that employment, and how much your current salary is”). Interrogatories are frequently used in divorce litigation to acquire information about financial assets and debts. An example of such an Interrogatory would be a question about bank accounts and balances during a specific time period. The answers to Interrogatories are made under oath.
Another method of discovery is a written Request for Admissions. One party makes written assertions of fact (or assertions as to the genuineness of a document), and requests that the other party admit such assertions. An example would be a request to admit that “on December 12, 1992, you vacated the former marital residence without your spouse’s consent to your leaving.” Under this discovery rule, the answering party is to respond to each request for admission by specifically admitting or denying the matter, or by setting forth in detail why the answering party cannot truthfully admit or deny the matter. The answering party is also permitted to raise objections to the request. If the opposing side fails to respond to the requests within a specified time, the assertions are deemed admitted. This means that a judge could consider the facts so admitted to have been conclusively proven for the purpose of the pending action in which the discovery issued.
Another method of discovery is a Request for Production of Documents and Things, which can only be directed to another party. Often this method goes hand in hand with Interrogatories. For instance, in conjunction with an Interrogatory about bank account balances, a party might request production of all monthly bank account statements over a specific time period.
Requests for Production are surefire ways of obtaining detailed financial information. Such requests can be extremely useful in gathering data regarding pensions and retirement benefits, life insurance policies, and the like. The documents and things being requested must be designated in the request, but can include existing writings, drawings, graphs, charts, photographs, phonorecords and other data compilations. Although there is no technical limit on the number of documents or things that can be requested, the other party is entitled to raise objections about unduly burdensome discovery requests."