If you want to win in court, you need to get all the facts straight. This usually requires digging for information and requesting evidence from the other party.
To request information from another party, you need to submit a formal motion for discovery. When you learn how to master this process, you can greatly improve your odds of success.
Keep reading to learn more about how a motion for discovery works, why it’s important, and what it entails.
What Is Discovery?
Legal discovery occurs before two teams go head-to-head in court. This process allows two parties to amicably exchange evidence. Moreover, it enables them to set ground rules for the trial.
The point of the discovery process is to ensure a fast and efficient court proceeding. In essence, it prevents teams from producing evidence at the last minute in court and surprising the other party.
Exchanging evidence in advance may seem counterintuitive to winning a trial. However, it’s actually a brilliant system. By sharing information before a trial, the two parties can gain valuable information to form a solid case or defense. This gives both sides an equal amount of time to prepare for the case and put their best foot forward. It also helps keep court cases civil.
Discovery vs. eDiscovery
It’s easy to confuse legal discovery with eDiscovery because they’re very similar.
In short, discovery refers to tangible objects like paper files, physical photographs, and objects with fingerprints. Discovery can also apply to physical inspections on private property.
The term “eDiscovery” refers to electronically stored information. Under Rule 34 of the Federal Rules of Civil Procedure (FRCP), eDiscovery can include writings, drawings, photographs, graphs, images, sound recordings, and other data. Not surprisingly, it’s becoming increasingly important as more and more digital information comes into existence.
Rule 34 also says that a party can issue a request to another party within the scope of Rule 26(b). Further, it allows you to issue a motion for discovery to a nonparty (e.g., a partner or technology vendor).
How to Begin Legal Discovery
In order to begin discovery, both parties need to have a meet-and-confer session. This session essentially kicks off the legal process. During this initial meeting, the parties attempt to resolve the issue on their own.
If the two parties agree that a trial is necessary, they then determine what type of information they want to use as evidence in court.
Discovery and eDiscovery can commence immediately following a meet-and-confer session. In other words, you don’t have to request permission or receive a court order to move into the discovery phase.
What Is a Motion for Discovery?
It’s important to realize that both parties retain control over their evidence following a meet-and-confer session.
To clarify, discovery isn’t a free-for-all. If you want to access private information from another party, you have to submit a formal motion for discovery. Another term for this is a request for production of documents.
Generally, there’s no limit to how many discovery attempts you can make. However, at a certain point, the court may prevent discovery if your requests become excessive.
How to Submit a Motion for Discovery
To submit a motion for discovery, it’s necessary to describe each item or category of items that you want to inspect.
Your request must also specify a reasonable manner, time, and place for the inspection to occur. In addition, you may outline specific eDiscovery forms.
Responding to a Motion for Discovery
Following the request for a motion for discovery, the other party has 30 days to respond. Rule 34 also says the party has to respond in writing. For example, the receiving party can’t respond over the phone or through a video conference.
If the request falls under Rule 26(d)(2), then the other party has 30 days after the parties’ first Rule 26(f) conference. The court may reduce or extend this time under Rule 29 or by court order.
The party may comply and grant permission for discovery, eDiscovery, or an inspection. The party may also choose to object to the discovery request if they feel it’s unnecessary, too invasive, or overly burdensome. Rule 34 says that an objection must state whether a party is withholding materials based on that objection. What’s more, when they’re objecting to part of a request, it’s necessary for them to specify that exact part and allow for inspection of the rest.
The party can also object to a data format and state the format that they intend to use instead.
Motion for Discovery vs. Motion to Compel
In some cases, the receiving party may decide not to comply with a motion for discovery.
Sometimes, legal teams get very busy and miss deadlines, for example. Legal teams may also strategically try to avoid producing evidence that may impact the court ruling.
If the other party doesn’t reply within the appropriate window of time, you can submit a motion to compel. In brief, this involves submitting a request to the court asking the judge to force the other party to provide evidence.
When submitting a motion to compel, you have to provide proof of an attempt to access the information on your own. In addition, you have to explain why you need the information.
To that end, the court will either grant the motion or deny it. If the receiving party doesn’t reply to the court order, the court may end the case without going to trial. That is a serious violation and grounds for dismissal.
For more information on filing a motion to compel, see FRCP Rule 37.
What to Include in a Motion for Discovery
A motion for discovery should contain three parts.
1. Introduction
First, the introduction should contain a brief and formal request, which asks the other party to produce documents.
It’s also important to mention that the request is under FRCP 34. Further, you should outline exactly how much time the other party has to respond.
2. Legal Definitions
Second, the document should contain a list of any legal definitions that you use in the motion.
3. Instructions
Third, you need to provide a list of detailed instructions for producing information. You can include several different requests in a single document.
To see what a request should look like, check out this sample from the US Department of Justice.
Venio: A One-Stop Shop for eDiscovery
Whether you’re sending or receiving an eDiscovery request, it pays to have all your ducks in a row. The eDiscovery process moves very quickly, and you don’t have an endless amount of time to act. Failure to respond promptly could result in sanctions.
In truth, it’s a lot easier to use a platform like VenioOne for end-to-end eDiscovery management. VenioOne centralizes eDiscovery, giving you instant access to data. At the same time, VenioOne makes it easy to communicate with stakeholders and securely export data to other parties. It’s the easiest way to gain full control over the eDiscovery process.
Better yet, jump in and start using the platform by requesting a free 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.
