Business Litigation 101: Understanding the Discovery Process
The old adage “knowledge is power” couldn’t be more true in the case of litigation. When you’re dealing with a business dispute or other civil lawsuit, the information at your disposal can make all the difference. That’s where the discovery process comes in handy. “Discovery” refers to a set of tools used in litigation to prepare both parties for trial. It can be used to obtain written statements, oral testimony, and documents pertaining to the case. A strong grasp of the discovery process can make it easier for you to decide whether you’d like to handle your civil case in litigation or settle it through some form of alternative dispute resolution.
The Tools of Discovery
In civil litigation, the formal tools of discovery include depositions, interrogatories, requests for production of evidence, and requests for admission. A deposition can be used to question a person under oath and record their testimony for use in the trial; interrogatories are similar, but they involve having the opposing party answer written questions. Lawyers can also request physical evidence like contracts, financial records, or real estate documents, as well as inspections of physical objects or property. Finally, one party can make a request for admission, in which they ask the other party to verify certain information with a quick statement under oath.
Before your case goes to trial, and sometimes even in the middle of trial, your lawyers can use the discovery procedures to get information about virtually anything related to the dispute. This can include documents, witness testimony, and more. Here are some examples of the questions a lawyer on either side might ask in the discovery process:
- What did a witness hear, see, or do in relation to the dispute?
- How is the witness’s personal life, education, or professional career?
- What did anyone say at a specific time and place connected to the dispute?
- Who might know something about the dispute, the money lost by either party, or the injuries suffered by either party?
- How is a particular business run?
By asking these types of questions, lawyers can find a wealth of information that relates to your business dispute, even if the connections are very minor. For instance, they can find out what was discussed in a business meeting that was held after a certain incident; they can learn how a business keeps its accounting records; and they can find people who may be able to shed a different light on the dispute. Depending on your situation, discovery can be incredibly helpful to gain more insight into the opposing party’s case—and potentially strengthen your own legal strategy.
What Cannot Be Asked
Discovery cannot be used to access “privileged” or legally protected information. While there is otherwise a great deal of leeway in the process, there are rules in place to prevent lawyers from prying into private or confidential matters. Examples of privileged information include:
- Information shared between a doctor and patient
- Discussions between a lawyer and client
- Counsel between a person and his or her religious adviser
- Private matters like health, sexuality, spiritual beliefs, and immediate family relationships
If a certain piece of sensitive information is necessary to help resolve the legal dispute, it can be treated confidentially with the use of a court-issued protective order. You can often protect your business’ confidential, financial information, or a person’s medical information in this manner—but not always. The courts tend to prioritize the privacy of third parties, like witnesses and family members of a party, over that of either party in a legal dispute.
If you’re concerned about your privacy, or you’d like to protect your company’s sensitive information, it may be wise to consider mediation or arbitration as a less intrusive alternative to litigation. An attorney will be able to give you more precise counsel to that effect. Get in touch with Campbell Law Group to discuss your case and explore the options best suited to your situation. With our knowledgeable legal counsel, you can make your next decisions with confidence.