The most crucial pre-trial activity in many personal injury cases is discovery.
Discovery is the formal process by which the plaintiff and the defendant legally
demand and obtain information related to the case from each other and other
witnesses.
Discovery can be complicated, time-consuming, and expensive. But when used
effectively, it can play a significant role in helping a plaintiff or a defendant reach
a favorable settlement or verdict.
What are the Purposes of Discovery?
Discovery levels the playing field by making all information relevant to the case
available to both the plaintiff and the defendant. It lessens the chances of
surprises at trial and thus assures that the case will more likely be decided on its
merits. It also allows the parties to evaluate better the strengths and
weaknesses of the evidence and witnesses for both sides, which often results in
an agreed-upon settlement instead of a trial.
What are the Methods of Discovery?
North Carolina’s Rules of Civil Procedure, like those in other states, define the
methods by which the parties can conduct discovery and the procedures that
apply to each. Those methods of discovery include:
1. Interrogatories – Interrogatories are sets of written questions (up to 50 in
North Carolina) sent by the plaintiff or the defendant to the other. The
responding party has 30 days to answer the questions in writing and under
oath. Interrogatories are usually used early in the discovery process
because they help the parties prepare for and conduct additional
discoveries, like depositions.
2. Requests for Admissions – Requests for admissions are written
statements of fact that the plaintiff or the defendant asks the other to either
affirm as accurate or deny as false. Like interrogatories, the party upon
whom requests for admissions are served has 30 days to respond in
writing under oath. Requests for admissions allow the parties to narrow
their dispute by identifying the facts on which they agree. As a result, they
are most often used early in the discovery process.
3. Requests for Production of Documents or Things – Requests for
production can be used by a party to obtain access to or copies of
documents, photographs, and other tangible things in possession of the
other party that pertain to the subject matter of the case.
4. Depositions – A deposition is a formal, in-person questioning of the
plaintiff, the defendant, or a witness (the “deponent”) by attorneys
representing the plaintiff and the defendant. A deposition usually happens
in an attorney’s office or a neutral location and is attended by attorneys for
both sides, with a court reporter present. The result is a written transcript
of the questions and answers that the deponent reviews, corrects any
errors, and then signs under oath – sworn testimony. Depositions can be
particularly useful because they allow the parties to assess the
effectiveness and credibility of a deponent should they testify at trial.
What is the Scope of Discovery?
The Rules of Civil Procedure provide that the parties may obtain discovery
regarding any matter that is “relevant” to the case and not “privileged.”
To be relevant, the information doesn’t have to be evidence that would be
admissible in court. If it is “reasonably calculated to lead to the discovery of
admissible evidence,” it is discoverable. For example, subject to limited
exceptions, hearsay is not admissible at trial, so witnesses will not usually be
permitted to testify in court about what somebody told them. But suppose a
witness reveals during a deposition that he was told that the defendant had been
drinking alcohol shortly before driving in the accident in which the plaintiff was injured. Because that might lead the plaintiff to discover admissible evidence that could be critical in the case, it is discoverable.
Even though it might be relevant, information that is “privileged” cannot be
obtained from a party through discovery, provided that the applicable privilege is
adequately asserted and not waived. In North Carolina, such information
includes confidential communications covered by the attorney-client privilege, the
doctor-patient privilege, and the marital privilege.
In addition to defining the scope of discovery, the rules require that the court, on
its initiative or upon a motion filed by the plaintiff or the defendant, prohibit the
use of the discovery that it determines is “unreasonably cumulative or
duplicative” or “unduly burdensome or expensive” considering the amount of
money in controversy in the case and the parties’ resources. By doing so, the
court can prevent the misuse of the discovery process.
Our attorneys at Kelly & West have been helping our clients with their personal
injury cases for 40 years and are skilled in conducting and responding to
discovery in such cases. If you have been injured as the result of the negligence
of another and are considering taking legal action against them, contact us to arrange a free consultation.
