Once a lawsuit gets underway, parties to the lawsuit or their lawyers start gathering information related to the lawsuit. This investigative process is aptly named "discovery," because it often turns up facts and documents that were previously unknown -- to at least one party to the lawsuit anyway.
For the most part, discovery takes place outside the courtroom, with parties exchanging written information and sitting through face-to-face questioning sessions (called "depositions"). However, if the parties can't agree on what should be handed over in discovery, a judge may have to resolve the dispute.
The kind of information that a party can force someone else to reveal -- is generally very broad, though there are some limits. A party may ask for facts about the case, for the identity of others who may know something about the case, for documents relating to the case, and for inspection of physical objects or property connected to the dispute. Discovery can be used to seek information not only from the other party to the lawsuit, but also from people and businesses that aren't involved in the legal proceedings.
The basic rule of discovery is that a party may obtain any information that pertains -- even slightly -- to any issue in the lawsuit, as long as the information is not "privileged" or otherwise legally protected (see "Discovery Limits," below). Here are some of the things lawyers often ask for in discovery:
Virtually any bit of information that might have even a slight connection to the lawsuit is fair game for discovery. But this enormous latitude sometimes leads to abuse. Lawyers might try to pry into subjects that have no legitimate significance for the lawsuit, or that are private and confidential, serving only to annoy or embarrass the parties. Fortunately, there are some legal limits on this kind of probing, and some protections to keep private material from being disclosed to the public.
Confidential conversations. Conversations between people engaged in certain relationships are given a special legal protection known as privilege. Courts and legislatures have decided that the free flow of confidential information in these relationships is so important that it must be protected, even though that information might be important to others in a lawsuit. Under the law, no one can be required to disclose any information, whether verbal or written, that was confidentially exchanged within the following relationships:
Private matters. In recent years, courts have increasingly recognized that some aspects of personal life should remain private, beyond the reach even of lawyers. But the right to privacy is a fairly recent and still-developing legal notion. As a result, there is no clear definition of precisely what it covers -- and the extent of its protection varies considerably from state to state. Roughly, the right to privacy protects a person from having to divulge information that is not obviously relevant to the lawsuit and is a matter that a person would not normally discuss or reveal to anyone outside of immediate family and intimate friends. This might include issues such as:
Privacy rights of third parties. Courts are more willing to protect the privacy of third parties -- for example, witnesses, co-workers, or family members of a party -- than the privacy of parties to a lawsuit. Courts often put limits on how much a party can find out about someone who isn't involved in a lawsuit, reasoning that it isn't fair to invade the privacy of someone who was dragged into a dispute.
Keeping discovery information from the public. Even if a party is required to disclose certain information to the other side in a lawsuit, that information can be treated confidentially by the court -- that is, the party who receives it can be prevented from revealing it to anyone else, and the court can keep it out of the public record. This might be done to protect, for example, sensitive financial information, confidential information belonging to a business, or personal medication information that is relevant to the lawsuit. For this to happen, a judge must usually order that information be kept confidential, in what's often called a "protective order."
There are four types of formal discovery tools that are frequently used in lawsuits. They are:
These discovery tools are explained in detail in Represent Yourself in Court, by Paul Bergman and Sara Berman (Nolo), and Nolo's Deposition Handbook, by Paul Bergman and Albert Moore.