Articles Tagged with discovery

Published on:

questionAfter a lawsuit is filed, the attorneys for both sides of the case engage in an exchange of information.  They is generally referred to as the “discovery” stage of litigation.  One side to the case, such as the Plaintiff, may ask that the Defendant respond to written questions (referred to as interrogatories), product requests for the production of documents, and even respond affirmatively or negatively to single questions (referred to as admissions).  While this information can form the landscape of the case and be vital in determining whether or not a case may win or lose, often, the single most important part of discovery deals with the parties themselves- depositions.

Under Massachusetts Rule of Civil Procedure, Rule 26 governing discovery:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): 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. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

A deposition is a formal meeting between the parties in which questions are asked, under oath, to one of the parties.  Typically, the party being asked the questions (the deponent) will be present with his or her attorney, the attorneys representing the other parties to the matter, and a stenographer.  After the stenographer puts the deponent under oath, the deposition gets under way.  Depositions allow the parties to truly flesh out their case and ask any questions (within reason) that they’d like to in an effort to get a better understanding of the underlying allegations for the matter.  For instance, if you are the Plaintiff in a medical malpractice action, the attorney for the nurse or physician may depose you through his or her attorney.  The attorney would then ask you questions ranging from your childhood, your educational background, the alleged incident in question, whether you have been convicted of any crimes, your relationship status with your significant other, how you were after the accident, other cases you’ve been involved in, etc.. Continue reading →

Published on:

gavelOnce a plaintiff files suit in court and the defendant answers the complaint, the parties enter into the discovery phase of litigation.  In the discovery phase, parties may submit written request for answers to the other side (interrogatories), request for the production of documents, requests for admissions, and notices of depositions.  The purpose of providing the opposing side with such information is to avoid surprise and the miscarriage of justice and to fully disclose the nature and scope of the controversy to narrow, simplify and frame the issues.  Once the discovery phase of litigation begins, attorneys may get the information necessary to win the case at trial or to craft a reasonable argument to encourage settlement prior to trial.  Essentially, the main purpose of discovery is “for the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329 U.S. 495, 501 (1947).

Under Massachusetts Rules of Civil Procedure, Rule 26:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): 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. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

Failure to comply for discovery requests can have disastrous results.  In a case recently decided by the Appeals Court of Massachusetts, the Plaintiff’s suit against the Defendant was ultimately dismissed because she failed to comply with discovery requests by the defense.  The judge found that the Plaintiff had defied the court order and did so despite clear warnings by a previous judge that he would dismiss her case should she fail to produce requested tax documents.  On appeal the Plaintiff claimed that the failure to produce the requested documents was due to the negligence and/or inaction by her attorney.  The judge, in his discretion, found otherwise. Continue reading →