The Role of Discovery in Civil Litigation

What Is the Purpose of Discovery?

Discovery is the formal pre-trial process through which each party in a civil lawsuit may discover legal evidence and facts about the case from the opposing party or parties and witnesses. In Tennessee, discovery is governed by the Tennessee Rules of Civil Procedure and, in many cases, by local rules as well. The general scope of discovery is quite broad. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…”¹ Both Plaintiffs and Defendants should use the discovery process in an effort to prove their claims and defenses and disprove the claims and defenses of the opposing party. The court may limit discovery in certain circumstances.²

There are four main types of discovery that will be utilized in most civil cases:  interrogatories, request for production of documents, requests for admission, and depositions.³

What Are Interrogatories?

Interrogatories are written questions. These questions can be as simple as, “How many countries have you lived in?” Or they could be more complex such as, ” List all sources of income for the past five years.” The rules require that interrogatories be answered separately, and that the person responding to the questions is under oath that the responses are correct to the best of the responder’s knowledge, information, or belief. In some cases, the responder may not know the answer to a question. If that circumstance occurs, it is acceptable for the responder to state something to the effect of, “After a reasonable review of all relevant information, the responder is unaware of the answer to this question.”

Am I Required to Hand Over Documents to the Opposing Party?

Requests for Production of Documents asks the opposing party to produce documents responsive to the requests. Knowing what to request is an art and a science. Your attorney will request documents that help prove your claims and defenses if they exist. In many cases, it is appropriate to ask for the production of correspondence, including emails and text messages that may contain something relevant to the lawsuit.

When responding to a request for production of documents, you should forward any information that may be responsive to the requests to your attorney. He or she will determine what should be included and ensure that no privileged communications are produced.

Must I Respond to Requests for Admission During Discovery?

Requests for admission is a set of statements, or allegations, sent from one party to the opposing party involved in civil litigation. Requests for Admission ask the responder to admit whatever is stated.⁴ Tennessee Rule of Civil Procedure 36.01 states in part: “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney…” ⁵ T.R.C.P. 36.02 further explains what the effect of admitting is on the current case and does not apply to other unrelated cases. In essence, it is conclusively established for the current case and does not apply for any other purpose.

What Should I Expect In a Deposition?

A Deposition is a proceeding during which one party’s attorney asks another party or a witness questions under oath. Depositions are usually oral; however, the Tennessee Rules of Civil Procedure also allow depositions upon written questions.⁶ Customarily there are many participants in a deposition. A court reporter will likely be there to transcribe the deposition. Sometimes there are videographers that take a video of the proceeding. Several attorneys may attend, including at least one to represent each of the parties in the case. Both parties are allowed to attend depositions in Tennessee civil cases.

Depositions can be key to understanding the case for the attorneys and the parties. Listening to an opposing party’s deposition responses can provide the trained attorney with a better gauge of the case. For example, if the opposing party appears calm, collected, and presents compelling narrative responses, your attorney may be concerned that such a party would be quite effective in front of the jury. However, if a hostile witness’ story sounds less convincing with each question answered, it may strengthen your case. Having an experienced attorney represent you during your deposition is important. Your attorney will understand when to object and advise you if there are times you should not answer a question.

Why Is Timing and Strategy Important During the Discovery Process?

The timing and strategy of discovery is something that a skilled civil litigation attorney considers in every case. Complications not addressed by this introductory article but which can occur during the process include discovery of electronically stored information (ESI), claims of privilege, sanctions, what to do when an opposing party fails to respond, how to identify abuse of the discovery process, etc. In some cases, with smaller amounts in controversy, the anticipated cost of extensive discovery is not economically viable. On the other extreme, there are some cases where so much is at stake that the scope and expense of discovery is practically limitless.

In all sorts of litigation, your attorney should be there to counsel you in what is appropriate to request in the discovery process, what must be responded to in discovery, and when objections should be made. Attorneys who know how to navigate the discovery process and offer the proper guidance and advice will prove invaluable to a civil litigation client.

If you need legal guidance regarding discovery in your current or prospective lawsuit, reach out to our team of experienced Nashville civil litigation attorneys today at (615) 490-6020.  We will help you navigate, litigate, and resolve your legal issue.

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¹ T.R.C.P. 26.02. https://www.tncourts.gov/rules/rules-civil-procedure/2602

² T.R.C.P. 26.02(1).

³ See T.R.C.P. 26.01. https://www.tncourts.gov/rules/rules-civil-procedure/2601

⁴ See T.R.C.P. 36. https://www.tncourts.gov/rules/rules-civil-procedure/3601

⁵ T.R.C.P. 36.01.

⁶ T.R.C.P. 31.01. https://www.tncourts.gov/rules/rules-civil-procedure/3101