What is discovery? According to thefreedictionary.com, discovery is, “A category of procedural devices employed by a party to a civil or criminal action, prior to trial, to require the adverse party to disclose information that is essential for the preparation of the requesting party’s case and that the other party alone knows or possesses.” A simpler definition is, “the organized exchange of information between the parties.”
Whatever definition you like, just remember that all discovery requests must lead to discovery of admissible evidence.
Usually right after your complaint or motion is filed and served, discovery may begin, or you can at least begin preparing your discovery requests.
Make sure you read and follow the Rules of Civil Procedure for discovery in your state. In Colorado, “discovery may commence 42 days after the case is at issue … [and shall be completed] 49 days before the trial date.” (A case is “at issue” in Colorado when all pleadings (complaint and answers) have been filed.) There is also mandatory disclosure in Colorado, which lessens the need for, and expedites, discovery.
Discovery is accomplished by asking questions and requesting information and proof. The goal of discovery is to acquire evidence (documents, testimony, etc.) to prove the essential elements of each of your claims (your causes of action; see Lesson #7).
There are five main methods to do discovery:
- Request for Production;
- Request for Admissions;
- Subpoenas; and
Which of these methods should you use, or how many of these methods should you use? You should use any or all of the methods to prove the essential elements of your claims.
For example, here are my allegations of the elements of one of my ex-wife’s and her attorney’s frauds upon the divorce court in 2006, which I am making in an upcoming lawsuit:
- Jane and her attorney defrauded the court with their Trial Management Certificate, Affidavit for Attorney’s Fees, and Jane’s testimony, during the final permanent orders’ hearings, to obtain an order requiring me to pay Jane’s attorney’s fees.
- Their false statements regarding attorney’s fees were made in an affidavit and in sworn testimony on the witness stand (which rise to the level of perjury).
- Their false statements were made regarding material facts.
- Jane and her attorney knew at the time that:
- Jane had twice testified under oath that her attorney had “graciously” waived his fees;
- Jane’s attorney had even paid the costs of the action for Jane; and
- They were both committing perjury and fraud upon the court.
- Jane and her attorney intended the divorce judge to act in reliance on their falsified Trial Management Certificate and Affidavit for Attorney’s Fees, and on Jane’s false testimony on the witness stand.
- The divorce judge did act in reliance on their false statements in his Permanent Orders, and awarded Jane $12,000.00 in nonexistent attorney’s fees and costs.
- As a direct and proximate result of this fraud upon the court, my five children and I suffered substantial damages.
The easiest way to determine what evidence you need is to highlight or write next to each paragraph on your copy of your complaint or motion the proof needed. For example, to prove paragraph 6, I would highlight “Permanent Orders” and at trial offer the order on the record so the jury can see that the judge relied on their false statements. Also, jot down the discovery method you will use to obtain each piece of evidence.
I have all the documents needed to prove this particular fraud upon the court at trial, except for a transcript of my ex-wife’s testimony that her attorney had graciously waived his fees. If I cannot obtain a transcript at this late date (the divorce took place in 2006), I will send “Jane” a Request for Admissions; if Jane refuses to answer or to admit this fact, I will file a Notice of Deposition (See Lesson #18) and depose her prior to trial; if Jane refuses to answer my questions at her deposition, I will ask her again on the witness stand in front of the jury; if Jane refuses to answer my questions during the jury trial, I will “move” the court to compel her answers; and if Jane lies about the attorney’s fees, I will ask the jury to ‘draw an inference’ on the matter based on her obvious uneasiness in committing perjury on the witness stand again (and I may move the court to find probable cause of Jane’s perjury and to arrest her on the spot).
I can easily prove the fraud upon the court by Jane’s attorney, and, if he doesn’t settle, he will regret it when I get my day in court!
If the opposition does not answer your discovery requests, you should file an immediate Motion for Order Compelling Discovery (or Disclosure) to obtain a court order requiring a response, and possibly sanctioning the adverse party for violating your rights. With respect for court-sanctions, however, take care to request only things needed to prove your case – i.e. do not request irrelevant items just to cause grief to the opposing parties. Remember, all discovery requests must lead to discovery of admissible evidence.
If the adverse party objects to any of your discovery requests, or fails to respond or to permit inspection or to abide by the law with respect to any of your discovery requests, be ready to file a motion to obtain a court order requiring performance under the law.
Make it your goal to solidify your claims through discovery so your opponents know they are going to lose at trial and know they should negotiate a fair settlement. One of the nice attributes of any discovery method is that the answer or testimony solicited must be made under oath – under penalty of perjury – so expect most people to take it seriously and provide the proof you need to resolve your issue.
The next five lessons will cover the five discovery methods.