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What Is This “Discovery” Thing All About?

Court & Appearances by Simon Offord, Esq.

If you become involved in a lawsuit in California, there is a good chance that you will be exposed to the “Discovery’ process. So what does that mean? To put it simply, discovery is the process by which parties to a lawsuit obtain information regarding the facts of the suit from the other side.

For instance, imagine that during the sale of a home in Palo Alto, a real estate agent is sued for failing to disclose that there was a death in the home within the last year. In attempting to determine liability and potential damages, the buyer must find out certain information, such as the agent’s knowledge of the death.

California law allows for both oral and written discovery. Most people have heard of oral discovery, or depositions. However, there are also three forms of written discovery that are generally a cheaper way to discover information and are typically done prior to any depositions.

These forms of discovery are Interrogatories, Requests for Admissions, and Requests for Production of Documents.

Interrogatories come in two forms, Form and Special.

Form Interrogatories are a pre-printed form created by the California Judicial Council. The party requesting responses simply checks the boxes for those requests they seek responses to. The requests ask for standard background information, such as the party’s name and their education and job history, and also contain specific questions relating to breach of contract and personal injury causes of action, among others.

Special Interrogatories are custom questions prepared by the asking party. Special Interrogatories may be asked on any issue relevant to the lawsuit, and are limited to 35 requests absent a declaration showing reasons why additional requests are necessary.

Requests for Admissions require the responding party to either admit or deny certain facts. In the above hypothetical, a Request for Admission might ask: Admit that you (the real estate agent) knew that there was a death in the home within the last three years. The responding party must either admit or deny that statement to the best of his/her ability.

Finally, parties can request documents from one another. The documents must be relevant, not privileged, and cannot invade certain privacy rights. Again, using the above hypothetical, the buyer could ask the agent for any communications (emails, letters etc.) between he and the seller.

These forms of discovery can all be very effective ways of obtaining information to evaluate your case. Hopefully, you will never be exposed to the discovery process, but in the event you are, you now have a brief primer on what to expect.

How you respond to discovery requests is critical in any litigation, and one wrong response could prove critical to your case. For this reason, it is important to consult an attorney before providing discovery responses.

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