Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Discovery is the process of finding (discovering) the relevant facts that must be
presented to the court. Discovery by set rules is a modern innovation designed to
further justice by giving both litigants access to the facts in the case. Discovery is
termed a procedural rather than a substantive matter (an ironic use of language, since
rules that affect the procedure of the law often have more profound effects than rules
that affect the substance of the law). In most civil litigation, and especially in
medical malpractice litigation, the majority of the time between the filing of the
plaintiff’s complaint and the point at which the case is ready for trial is taken up with
discovery proceedings. These proceedings can be time consuming and expensive. A
major argument for alternatives to litigation for resolving disputes is avoiding of the
cost of discovery.
Discovery is meant to help the parties to find the truth and properly prepare their
cases. Discovery rules are very liberal, allowing parties to obtain information that
they may not be able to use in court, as long as there is a chance that it will lead to
admissible evidence. This does not mean that all the information developed in
discovery can be used at trial. The scope of pretrial discovery is much broader than
the scope of allowable evidence as defined by the rules of evidence. After the
information is obtained through discovery, the judge will make a separate
determination on whether it will be allowed into evidence—presented to the jury—at
trial.
Discovery may be carried out by directly asking a person questions (oral
depositions), by sending a person written questions (interrogatories and depositions
on written questions), and by requesting that the person provide documents (motions
for production, subpoenas duces tecum). The person answering the questions must
refuse to answer the questions or swear that the answers provided are correct to the
best of his or her knowledge. If it is later determined that the person was lying, he or
she may be fined or prosecuted for perjury. If a party to the lawsuit lies, the court has
the authority to direct a verdict for the opposing party. Most judges conduct a
discovery conference at some point in the pretrial preparation of a case to work out
the remaining discovery issues so the case can proceed to trial. Federal judges
usually enter discovery orders to control and hasten the discovery process.
a) Interrogatories
Interrogatories are written questions that may be sent to any person or legal entity
who is a party to the lawsuit (plaintiff or defendant). They may not be sent to
persons who are not parties to the litigation. Most jurisdictions limit the number of
questions that can be asked and the number of sets of interrogatories that can be
sent. The questions are directed to the party personally, but they are sent to the
party’s attorney and the attorneys representing all the other parties to the litigation.
The attorney gives the questions to the client and either asks the client to prepare a
set of draft answers or has a paralegal work with the client to prepare the draft.
Once the draft answers are prepared, the attorney edits this draft to prepare answers
that are technically correct and provide the requested factual information, but
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