How to Participate in Formal Discovery

Making Written Discovery Requests

Decide what written discovery requests you want to make. There are three basic types of written discovery – interrogatories, requests for admissions, and requests for production. You may want to use all of them, or you may find that some are not necessary for your case. Interrogatories are written questions you send to the other party that they must answer in writing and under oath. Interrogatories can be used to learn additional information from the other party such as the names of potential witnesses or the other party's description of the dispute that gave rise to the lawsuit. Requests for admission also must be answered in writing and under oath, and are requests that the other party admit various facts of relevance to the case. Requests for admission can be useful for eliminating the number of facts you must prove at trial. If the other party admits something, you don't have to prove it. Use requests for production to ask the other party for copies of documents or other evidence that might have relevance to any of the facts alleged in the lawsuit. For example, if you are suing your employer for wrongful termination, you might request the company produce your personnel file or any documents associated with your termination.

Check the procedural rules. The court's rules of procedure provide information on the types of discovery that are allowed, the limits of each type, and procedural requirements you must follow. Most courts limit the number of interrogatories or other requests you can make. These limits are specific to each type of discovery – in other words, if the rules limit you to 40 interrogatories and 30 requests for production, you would have 70 total written discovery requests if you used both methods. If you have additional questions or requests that exceed the limit established by the court's rules, you typically must ask the court's permission before you proceed. You also may want to check the rules regarding how long the other party has to respond to the requests and what you must do to file a motion to compel if the other party doesn't respond by the deadline.

Format your documents. Even though you don't have to file any written discovery requests with the court, your documents still must be formatted in the same way other court documents are formatted. Depending on the court that's hearing your lawsuit, you may be able to find a form you can use online or at the clerk's office so you don't have to format your documents by hand. If there's no form, get copies of discovery requests filed in another lawsuit in the same court so you can use them as a guide. All discovery requests must have the caption on the top of the first page. The caption appears on the complaint, answer, and all other documents filed by the parties in the case, and can be copied exactly.

Draft your requests. After you've finished formatting your documents, you're ready to write the actual questions or requests that you want the other party to answer. Anything you ask must have relevance to the claims or defenses in the lawsuit. Keep in mind that if your request seeks information protected by a privilege (such as attorney-client privilege), the other party will object and you won't get a response. Another objection you might run into is the objection that your request is vague and overly broad. Typically a party asserting this objection must explain their reasoning. Generally, your requests should be fine if they have a narrow scope and are clearly designed to lead to unprivileged information that's relevant to the claims or defenses in the lawsuit. You typically can find sample interrogatories and other discovery requests that you can use by searching the internet or visiting the public library in your local courthouse. However, be careful not to copy these sample requests verbatim unless you're absolutely ;sure they apply to your case.

Serve your requests on the other party. Although there is no requirement to file discovery requests with the court, you must have them served on the other party using standard legal service of process methods. Discovery requests typically aren't hand-delivered. You may have had a sheriff's deputy or private process server deliver your complaint or answer, but discovery requests typically are sent through the mail. Make a copy of your requests for your own records before you mail them, and then send them using certified mail with returned receipt requested. When you get back the green card indicating that your requests were received, fill out a proof of service form and file it with the court. The proof of service form will be important if you end up having to file a motion to compel because the other party won't respond to your requests.

Responding to Written Discovery

Read the requests carefully. Don't start responding to the requests until you've read all of them completely and can understand each of them, both individually and in context of the lawsuit. If there's a question or request that you don't understand, you may want to consider consulting an attorney. If a request seems vague or broad, you can object to the request. However, keep in mind that if you object you typically must explain why the request was improper. You also can object to the request if responding to it would require you to violate some privilege, such as attorney-client privilege, or it involves private or confidential information. For example, if you are a small-business owner and a former employee has sued you for wrongful termination, it wouldn't be proper for them to ask you for personnel files for other employees who also were filed (unless those other employees also are parties to the same lawsuit). Those files contain confidential information and it would be illegal for you to disclose them. In that example, you also would have an objection on the basis that the request is not calculated to lead to the discovery of admissible evidence, since confidentiality would prohibit such information from non-parties being disclosed at trial.

Draft your responses. Before you start your formal responses, it's a good idea to jot down some notes regarding how you intend to respond to each question or request. Make notes to yourself if there's information you need to look up to write a complete and accurate response. Even if you plan on objecting to a request, at this stage you still should draft a potential answer you would give. Keep in mind that for some objections, you still have to answer the question – to the extent it isn't objectionable – even if you assert an objection to the question. While you're drafting your responses, you'll also want to look at the court's rules to determine what objections you're allowed and how you should formulate your answers. You also can do research at the public law library in the local courthouse to learn more about objections.

Gather requested documents. If you have requests for production, you must provide the other party with copies of the documents or other evidence requested in addition to your written responses. The requests may specify the format requested, particularly if the requests concern electronic files. If paper documents are requested, you must make copies of the documents and have them sent to the other party (or to their attorney) along with your written responses.

Create your formal responses. You don't have to file your responses with the court, but they still must follow the formatting guidelines and other rules established by the court and laid out in the court's procedural rules. The first page of your responses must include the caption for the case at the top. This heading provides the name, court, and case number, and is exactly the same on every document related to the case. Court rules typically require you to copy the interrogatory or request exactly in your response, and then type your response. For requests for production, your responses typically will be less lengthy than for interrogatories, while responses to requests for admissions will be the shortest of all. Unless you have an objection, a request for an admission typically can be answered in one word (either yes or no). If you've produced a copy of a requested document, you typically only need to type "Attached" as your answer. If the request instead involves allowing the other party to inspect certain premises or areas, give permission as requested and provide the specific dates and times the requested areas will be available. Keep in mind that responses to discovery requests typically must be verified, meaning you must sign them in the presence of a notary public.

Send your responses to the other party. Once you've finalized your formal responses, you must send the originals to the other party by the deadline established by the court – typically 30 days from the day you received the requests, but sometimes sooner. Be sure to make a copy of your responses before you send them, and mail your originals using certified mail with returned receipt requested. When you get the green card back indicating that your responses were received, attach it to your copy of the responses and file it with your other documents related to the case.

Taking Depositions

Consider hiring an attorney. If you're representing yourself, you may want to hire an attorney for the specific purpose of taking any depositions you may need. Depositions can get complicated, especially if the person you want to depose is represented by an attorney. Check on the website of your state or local bar association to find out if there are attorneys you can hire solely to conduct a deposition, but who don't represent you in the case as a whole. You also may be able to consult an attorney for a reduced flat fee and take the deposition yourself. Your attorney advisor will help you prepare and work on questions you should ask.

Schedule the deposition. If you're taking a deposition, it's your responsibility to provide sufficient notice to the other party and potentially have a subpoena issued if you need to depose a third-party witness. When you schedule the deposition, you typically must send written notice to the other party at least a couple of weeks before the date the deposition is scheduled. If you're taking the deposition, it's your responsibility to hire a stenographer or court reporter to produce a transcript of the proceedings. Ask the clerk of court or check the court's website for more information on how to hire these professionals. If you are deposing a third party, you must send them a written notice accompanied by a subpoena issued by the clerk of court. These documents must be served on the witness, typically by a sheriff's deputy.

Prepare your outline. You must engage in extensive preparation before you take a deposition, including researching the case documents and other information you have on the person you plan to depose. First identify the purpose you're taking the deposition. Maybe the person will be a potential witness at trial and you need the deposition because you might need to impeach their testimony if they later say something in court that contradicts their deposition testimony. You also may have a deposition purely for discovery purposes, because the person has information important to your claim or defense that you want to learn about and the most efficient way to do that is to depose them. Once you've identified the purpose of the deposition, create a general outline of the topics you want to cover over the course of the interview. Take care not to create an outline that's too detailed or to write questions you want to ask verbatim. If you stick too closely to an extensive outline you run the risk of missing out on important information because instead of listening to the witness you're focused on what your next question is going to be.

Have the witness sworn. At the start of the deposition, you must request that the court reporter swear in the witness so all responses will be under oath and on the record. You also may be expected to explain to the witness what will take place during the course of the deposition. If the witness is represented by an attorney, they likely have already gone over the rules of a deposition and what to expect. You might ask the witness to confirm that they've discussed with their attorney what will happen. Ask the witness if they have any questions about the deposition or the procedure before you begin. Make sure any discussion about the nuts and bolts of the deposition procedure stays on the record.

Interview the witness. A deposition is essentially an interview conducted under oath, so once the witness is sworn in it's your job to begin asking the witness questions using your outline as a guide to organize the discussion. Try to keep the deposition as much like an everyday conversation as you can. Ask simple, straightforward questions and encourage the witness to keep talking. In most cases, you want to ask open-ended questions and get the witness talking, rather than asking narrow yes/no questions that won't produce much usable information in response. Never interrupt the witness when they're talking, even if you feel they've misunderstood your question or they're rambling on about something that's irrelevant. Keep in mind that the more you get the witness talking, the more comfortable they'll feel talking to you – and the more comfortable they feel, the more they'll let you know.

Being Deposed

Consider consulting an attorney. Although it's not necessary to have an attorney, especially if you're being deposed as a third-party witness, you may find an attorney's presence calming and their guidance useful – particularly if you find the prospect of being interviewed under oath intimidating. If a party in a lawsuit wants to depose you, typically you'll receive a notice of the deposition along with a subpoena. This means that you must appear at the location on the date and time scheduled or you could be compelled to do so by a court. If you're a third-party witness and can't appear on the date scheduled, the parties to the case typically will be willing to work with you to reschedule the deposition. But don't use that to unnecessarily delay the deposition, you're just postponing the inevitable. You may be contacted by the attorney for one of the parties if that party is going to call you as a witness for their side. That attorney may work with you and help you prepare for the deposition, but keep in mind that attorney does not represent you. The website of your state or local bar association is a good place to start if you decide you want to hire an attorney. There you'll find a searchable directory of licensed attorneys in your area who do similar work.

Review information about the case. Before the deposition, you want to make sure you're familiar with the claims in the case and have a general understanding of the types of questions you're likely to be asked and how you will answer them. For example, if you work in the human resources department of a company and are being deposed for a lawsuit regarding the alleged wrongful termination of one of the company's former employees, you likely will want to brush up on your company's termination policies and procedures as well as information regarding that particular employee and their performance. However, take care not to research or read up on any information that would not normally be within the scope of your employment. If you're an eye witness or party, keep such research to a minimum. You are being deposed for the knowledge you have in your head about issues of relevance to the case and your observations – not what you would know if you had several weeks to thoroughly research and evaluate the circumstances surrounding the dispute or incident. If you've hired an attorney, they typically will go over with you the types of questions you should expect and give you general guidelines on how to answer them – although they won't coach you on specifically what you should say. What you should say is whatever the truth is.

Remember that you are under oath. You must answer questions completely and honestly, even if you're afraid it might be damaging to one of the parties in the case (or to your own case). Don't forget that there are serious consequences for lying under oath. You may be tempted to provide a partial answer, especially if there are aspects of the answer to the question asked that reflect poorly on you as a person. However, keep in mind that a partial answer is considered a false answer. You are expected to answer fully and completely based on your personal knowledge of the situation. In the same vein, if you don't know the answer to a question, don't try to guess or make something up. "I don't know" is an acceptable answer if it is the truth. If the question is complex and you're not entirely sure how to answer, ask the person conducting the deposition for clarification before you respond.

Listen carefully to the questions. When the attorney or the other party is asking you a question, wait until they are finished speaking before you answer. Take a minute to collect your thoughts after the question has been asked rather than trying to formulate your answer before the question is finished. If something about the question is confusing, ask the person deposing you to restate the question or explain what they meant. Likewise, if the person deposing you uses a word that you don't understand, ask them to define that word for you before you respond, rather than assuming you know what they mean. Keep in mind – especially if you are being deposed by a lawyer – that some words may have a different meaning in the legal context than they would in everyday speech. If you think you're being thrown some legalese, don't hesitate to request the question be rephrased in layman's terms.

Avoid rambling. Don't give the opposing party information without them specifically asking for it. Answer the question you're asked, and don't add commentary or other information unless the opposing party prompts you to do so. Keep in mind that the goal of the other party is to get you talking and keep you talking. The more you say, the more they'll learn. Keep your responses brief and direct, and don't elaborate unless prompted to do so. Don't treat this as an everyday conversation. Instead, take every question asked literally and answer only the exact question that was asked. For example, in your everyday life, if someone asks you if you know what time it is, you typically would respond by giving them the time (if you knew it). However, they didn't ask you what time it was – they asked if you knew what time it was. In everyday interactions, you assume that question was asked because they wanted to know the time. In a deposition, you should make no assumptions. If the attorney asks you if you know what time it is, this is a yes or no question. Don't volunteer anything else unless asked.