Law 101 for Experts: Understanding the Discovery Process

In a civil suit, discovery is the process of disclosing information so that all parties understand the basic facts and issues in the case. 

Dani Alexis Ryskamp, J.D.

Written by
— Updated on May 18, 2022

Law 101 for Experts: Understanding the Discovery Process

There are several different methods to accomplish the discovery process, each of which offers certain advantages or disadvantages. Typically, state or federal court rules govern the methods and timing of discovery.

Expert witnesses often enter a case during the discovery process. The identity, expertise, and opinions of a retained expert are common subjects for discovery. Experts who understand the discovery process can participate more effectively and help attorneys build a clear, fact-based case. 

Rules Governing the Scope of Discovery

Since the 1940s, U.S. federal courts have required parties to a civil case to disclose all relevant facts to the other parties in the same lawsuit prior to trial. Each U.S. state also has these disclosure requirements, although the specifics may differ by state.

Title V of the Federal Rules of Civil Procedure includes Rules 26-37. These rules collectively address the scope of discovery and the various forms of discovery available. Rules 26-37 also explain the general rules for proceeding through the discovery process in federal courts. These also include rules governing how attorneys disclose expert witnesses’ identities, credentials, and opinions.

The purpose of broad-based discovery is to help the parties to a civil lawsuit determine exactly where the dispute lies. Discovery also helps the parties decide which questions must be settled via negotiation or answered by a court. Expert witnesses aid this process by providing necessary scientific, technical, or other expertise to answer questions and clarify key issues.

Methods of Discovery

The discovery process relies on several different methods of organizing and exchanging information. The Federal Rules of Civil Procedure and analogous state court rules address each of these methods.

Interrogatories

Interrogatories are questions about specific facts and claims. A party who receives interrogatories from another party is expected to respond in writing.

Interrogatories may be form questions or created for a specific party or case. Most interrogatories are a combination of the two. Many begin with basic information, including asking for the spelling of the party’s name, the party’s address, and similar information. They may then proceed to questions specific to the case. Interrogatory questions may also be very broad or very specific; most sets of interrogatories contain questions of both types.

Some states allow parties to seek information about expert witnesses via interrogatory. Oftentimes, this information is limited to the expert’s name, contact information, and topic on which the expert is expected to provide an opinion. The parties usually exchange the expert’s actual opinion later in the discovery process in the form of an expert witness report.

Requests for Production of Documents

A request for production of documents asks a party to provide copies of documents relevant to the case. Common requests include requests for copies of police reports, medical records, accident reports, and insurance policies. Attorneys may also seek electronic documents by a request for production of documents.

In some cases, an expert witness may need documents the other party possesses in order to make an informed opinion about a certain issue. A request for production of documents may be used to obtain this information so that the expert witness can proceed to form an opinion.

Depositions

A deposition is a sworn statement, often in the form of a question and answer session between the deponent (the person being deposed) and each party’s respective attorneys. Most depositions are held for three reasons:

  • “Locking down” a party’s story or perspective
  • Finding out what a party knows or finding clues as to the other side’s strategy
  • Seeing how a witness behaves during questioning, which provides insight for trial

Attorneys may depose expert witnesses. Depositions can be nerve-wracking. However, it is essential to listen carefully to the question asked and to answer exactly what the attorney asks.

Subpoena Duces Tecum

A subpoena duces tecum requires a person attending a deposition or trial to bring certain documents or items with them. These orders are useful when a document or item is the topic of conversation. Attorneys can use also use a subpoena duces tecum to cover items a request for production of documents does not. An example of this is a product that allegedly has a defect that caused injuries.

Physical Examinations

A physical examination is used to assess a particular individual’s physical health. Physical examinations are less common than other forms of discovery. In some cases, they can provide valuable information, especially when the progress of a party’s recovery from injury or illness is at issue.

Requests for Admissions

At first glance, requests for admissions may resemble interrogatories. They are lists that require a written response. Yet requests for admissions don’t merely ask for answers to questions. They ask the party receiving them to admit to certain facts related to the case.

Attorneys handle requests for admissions very carefully. Certain admissions can force certain results—not all of which are advantageous to the client. Yet requests for admissions can be useful when both sides wish to narrow down the issues in the case to one specific question or problem.

How Experts Can Push Back Against Discovery Abuse

Attorneys often retain experts early in the discovery process. As information becomes available, experts can access documents and other information that may affect their opinion. An expert’s written report is itself an important part of discovery that, like other documents, is shared among the parties.

Discovery is often straightforward—but not always. Many attorneys have strategies for using discovery to their advantage. Some of these strategies attorneys follow in good faith are in the best interests of the client. Others abuse the discovery process.

What is Discovery Abuse?

Discovery abuse includes various means of using discovery methods to delay, harass, or wear down an opposing party. It may involve expert witnesses as well as parties, lawyers, and fact witnesses.

Not all mistakes or even deliberate misbehavior by an expert witness counts as discovery abuse. In federal courts, for instance, the failure of an expert to disclose information required under Rule 26(a)(2)(B) typically results in the court disallowing that expert’s testimony. However, it doesn’t typically result in penalties for discovery abuse if the expert can show the failure was “substantially justified or harmless.” The court also considers the impact of the failure on the opposing party.

Avoiding Discovery Abuse

To avoid discovery abuse, experts should do their best to provide all required disclosures. If an expert cannot provide information for some reason, it’s important to document that reason. Documentation can even reveal cases of discovery abuse by an opposing party. For instance, it can reveal a pattern of delay or refusal by the opposing party when asked to produce certain documents the expert needs in order to complete their own report.

Discovery provides an opportunity to clarify issues and focus the parties on resolution. Expert witnesses provide essential information during this process. By doing their own work diligently, experts can help maintain the integrity of the discovery process.

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