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As the saying goes, preparation is the key to victory. This is especially true in court, where competition is fierce and things move quickly.
To win a case, you have to plan ahead and get your facts in order during the pretrial discovery process.
Keep reading to learn about legal discovery and, in particular, discovery requests, why they’re important, and how to issue them.
What Is Discovery?
Discovery is a formal process that two parties engage in before going to trial. During discovery, both sides exchange evidence to learn what the other side intends to use in court.
Discovery refers to tangible objects—or anything that you can physically touch. For example, this may include a gun with fingerprints on it or a stack of physical documents.
In the digital age, eDiscovery—or discovery for electronically stored information (ESI)—has taken on increased prominence. Examples of ESI include public cloud data, images, and computer files.
Why Do Legal Teams Go Through Discovery?
Discovery may seem odd at first. Industry newcomers often ask why you would give evidence to the opposing side before presenting it in court.
The main reason for discovery is to prevent surprises in court. Ultimately, discovery makes the legal process much more efficient. It also gives both sides an equal opportunity to present their case in court.
At the same time, discovery also saves money. It gives an opposing side the ability to object to an overly burdensome discovery request.
What Is a Discovery Request?
Given that discovery is a formal process, rules govern how teams can request and exchange information.
With this in mind, a discovery request is an official inquiry for information.
In this situation, you aren’t ordering the other party to provide information. Only a court can issue an order. In essence, you’re giving the other party a chance to comply with your request and provide evidence—or decide to object.
Who Sends a Discovery Request?
Under Rule 34 of the Federal Rules of Civil Procedure (FRCP), a party may serve a request for discovery to another party.
In short, this means both sides—including the plaintiff and defendant—can issue a request for discovery.
A plaintiff may issue a discovery request when trying to form a case against an opponent. At the same time, a defendant may issue a discovery request when trying to obtain evidence to defend their position.
Types of Discovery Requests
There are several types of discovery requests that legal teams can make in court, which we will briefly examine next.
An interrogatory is a set of questions that an opposing team will ask during a case.
Interrogatories force individuals to agree to particular statements that can directly impact the rest of a case. Look into FRCP Rule 33 for interrogatory guidelines.
A deposition is a statement or testimony that you give under oath. Depositions are either written or oral. After an oral deposition, the court will transcribe the material into a written transcript.
A court will occasionally compel a third party to testify in court. When this is necessary, the court will issue a subpoena. For more information, see FRCP Rule 45.
Requests for Admission
A request for admission is for getting someone to admit or deny a statement. Savvy legal teams use requests for admission to lead an individual to admit something else.
To illustrate, in a domestic violence suit, an individual may not admit to behaving aggressively. But they may agree to having frequent mood swings, a history of drug or alcohol abuse, or anger management issues. These types of issues could indirectly lead to an admission.
Explore FRCP Rule 36 for guidance on requests for admission.
Requests for Production
The above discovery methods all involve asking individuals or entities to make statements. But before you get to the point where you start asking people questions during discovery, you have to get the facts in order. And this also requires issuing a request for production.
Issuing a request for production involves asking for tangible evidence, ESI, or a physical inspection.
This isn’t something that you can do by picking up the phone or firing off a quick email. Instead, you need to follow a formal process.
Let’s take a look at how to issue a request for production.
How To Write a Discovery Request for Production
1. Have a Meet-and-Confer Session
The first step is to meet and confer with the other party. During this session, two legal teams will meet to discuss the issues in the lawsuit.
After the meet-and-confer session, you can issue a discovery request for production.
2. Determine the Evidence That You Need
The next step is to determine what type of evidence you need.
In some cases involving tangible evidence and private property inspections, discovery requests can be straightforward.
For eDiscovery requests, this process can be a bit more complex. For guidance, check out the electronic discovery reference model, which is a common industry framework that guides eDiscovery efforts.
3. Create a Request
Next, put together a document detailing the discovery request.
Make sure the contents describe each item or category of items that you want to inspect. Further, you’ll need to specify a time, place, and manner for an inspection or the form that you want for the ESI.
4. Wait for a Response
After sending the request to the other party, give them time to respond.
The other party has to respond in writing within 30 days after you serve them. If you deliver the request under Rule 26(d)(2), then they have to respond within 30 days after the parties’ first Rule 26(f) conference. The court may issue a shorter or longer time frame.
If the party doesn’t reply, you can file for a motion to compel and force the party to respond. If they still don’t reply to this court order, the case will most likely end.
It’s also possible that the party will object to part of the request.
Sample Discovery Requests
Discovery requests typically follow a common format that you can mirror.
First, list instructions detailing the request for production. Be sure to mention Rule 34 and Rule 26(b), which outline the scope of the discovery request.
It’s also necessary to include a section with definitions. After that, you need to list out the specific document requests in numbered format.
At the end, sign and date the document.
To give you a better idea of what a discovery request looks like, here are a few samples that you can use as models:
- Radio Shed v. American Electronics
- Cole Taylor v. Pegasus Trucking
- First Judicial District of Pennsylvania
Transform Your Approach To eDiscovery
The eDiscovery process moves very quickly. As such, legal teams can’t afford to spend time manually digging through data and compiling information.
To streamline the process, more and more legal teams are now turning to eDiscovery platforms. For example, Venio offers VenioOne—an AI-powered platform that streamlines eDiscovery end to end.
VenioOne can lower eDiscovery TCO by up to 90% while processing data up to 10 times faster than competitors at over 10 TB per day.
To experience the Venio difference yourself, request a demo today.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.