Lawyers understand the term “discovery” in the context of a civil lawsuit but laypeople involved in a lawsuit likely do not understand what it means to “conduct discovery.” In general terms, it means exactly as it is defined in plain English, i.e. to find out something. In the context of a lawsuit, discovery is used to find out about the basis of the plaintiff’s claims, as well as the basis of the defendant’s defenses.
Our court rules permit a wide latitude in discovery. A party may “discover” any information or documentation that is either relevant to the subject matter of the lawsuit, either the claims or the defenses, or which is “reasonably calculated to lead to the discovery of admissible evidence.” This information or documentation may not be admissible at trial based upon an evidentiary rule but it may nevertheless be required to be produced in discovery if requested.
Discovery can be made through various formats. Typically, lawsuits start off by requesting the other party to answer written questions called interrogatories. These questions will include topics asking about either the claims or defenses, such as asking about the party’s version of events, persons with knowledge of relevant facts, the plaintiff’s injuries and/or damages, and the identity of experts and their reports.
Additionally, written discovery requests will likely ask for relevant documents that would support the party’s claim or defenses.
After written discovery is exchanged, the parties usually move onto depositions. In depositions, witnesses are asked to give oral sworn testimony about the subject matter of the lawsuit. Some of the same topics asked in written questions are often asked in depositions but in much more detail. It also gives the other party the opportunity to assess the individual’s demeanor as a witness.
Discovery may also include an inspection if the claim involves an incident resulting from the condition of a premises or a piece of equipment or machinery. Experts, if retained, may need to conduct an inspection to prepare an expert report.
If the matter involves a personal injury, medical records need to be obtained during the discovery process to be able to assess the medical condition and extent of injuries suffered by the injured plaintiff. These records are evaluated by defense counsel and then typically utilized to set up a defense medical examination. The plaintiff has treating or examining doctors and the defense will need its own doctor to examine the plaintiff and provide an opinion on what injuries the plaintiff suffered in the incident and if the plaintiff suffered a permanent injury.
Depending on how the accident occurred, after the written discovery and depositions are completed, then the parties decide if other experts need to be retained. In addition to medical experts, other experts may need to be retained who can render opinions on the liability aspect of the case, such as who is responsible for the incident occurring (or not responsible). In addition, there could be other experts as to damages that need to be retained, such as economic or vocational experts.
And, the last discovery typically conducted would be expert depositions. Due to the cost of deposing experts, expert depositions are not routinely conducted.
Once all of this discovery is completed, the lawsuit moves onto its final stage. Settlement is often considered at the conclusion of discovery. If the case does not settle, personal injury lawsuits are subject to mandatory nonbinding arbitration in New Jersey. Additionally, mediation is used frequently as a proceeding to facilitate settlement.
If the case does not settle, the parties can consider filing a motion for summary judgment to try to obtain a dismissal before trial. If not, or if the motion is not granted, at that point, the case would be resolved through a trial.
