Discovering what court considers evidence
Published 8:00 am Saturday, October 17, 2020
Dear Lawyer Mark: I was watching a movie about a lawyer the other day, and they kept talking about “discovery.” I watched the whole movie, and they never actually said what discovery is, even though they kept talking about it.
I pretty much figured that’s how lawyers and doctors are, just talking using words that nobody else knows what they mean.
So, my question is, what is discovery? — Trying to Discover the Answer
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Dear Trying: Put simply, “discovery” is the process people involved in lawsuits use to find out, or discover, what evidence the other side has before they go to trial. How you go about receiving discovery is different depending on whether you are involved in a civil lawsuit (where someone is suing someone else), or a criminal lawsuit (where someone is facing criminal charges). I’ll talk about criminal discovery in a future column.
There are five main ways to obtain information through discovery, and the person seeking the information chooses how to go about it.
The first method is a “request for admissions.” This is a document that asks a person to admit or deny certain allegations, and the person must respond in writing. One example for a divorce case might be: “Admit or deny you committed adultery during the marriage to your current spouse,” which would have to be answered in writing.
The second method is “interrogatories,” which are written questions that the person must answer under oath in writing. In the example above, an interrogatory might be: “Set forth the names, addresses, and cell phone numbers of all individuals with whom you committed adultery during the marriage.”
The third method is a “request for production of documents,” where a person demands in writing for the other side to produce copies of certain documents. In our divorce example, the request may be: “Produce a copy of all text messages and emails between you and the individuals you named in the Interrogatory above.”
The fourth method is oral depositions. During depositions, the person responding is placed under oath, and the lawyer for the other side gets to ask them questions. The proceeding are recorded by a court reporter, which can be typed up and used for certain purposes at trial.
The fifth method is a subpoena. Subpoenas have the power of a court order, and direct a person who is not part of the lawsuit to produce documents or attend and testify at a deposition. Continuing our example, a person could attempt to subpoena the cell phone provider demanding copies of any records they have showing the dates and times of telephone conversations.
Thought for the Week: “Mistakes are the portals of discovery.” — James Joyce
It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.