In civil lawsuits, long before a jury hears a single word about a case—indeed, long before any of the eventual jurors to hear a case knows they’ll need to report for jury duty—the lawyers and parties in the case are exchanging information. They do this through a formal process known as discovery. One party will request information from the other, the other will answer, and vice versa. Under the Federal Rules of Civil Procedure (FRCP), there are four common forms of discovery requests and responses that are used in virtually every case: oral depositions, requests for admission, interrogatories, and requests for production. This post discusses each in turn.
Depositions are governed by FRCP 30-32. An oral deposition is like pretrial testimony. A party to the case or a witness that may be called at trial is placed under oath and questioned by the parties’ lawyers. The depositions will at least be transcribed by a court reporter, and may also be recorded on audio or filmed. During the deposition, a lawyer may object to any question, but since the judge isn’t present to give a ruling, the person giving the deposition will normally answer the question despite the objection. An attorney is not allowed to instruct his client not to answer a question except for limited purposes, such as preserving a privilege.
Requests for Admission
Requests for admission are authorized by FRCP 36. A request for admission is a request by one party that another party either admit or deny that something is true. If the party admits that the requested information is true, then the court will treat that as conclusively evidence that it is true. Importantly, if a party fails to respond to a request for admissions within 30 days, then the court will treat it as if the party admitted everything that was requested.
Like the name suggests, interrogatories are written questions from one party to another. They are governed by FRCP 33. In general, a party can only serve 25 interrogatories on another party. When the other party receives the interrogatories, the party has 30 days to answer. The answers must be made under oath, and every interrogatory must either be answered or objected to.
Requests for Production
FRCP 34 provides the rules for requests for production. A request for production is a written request by one party that another party produce any evidence or potential evidence requested. Requests for production tend to be very broad, because the party making the request wants to be sure that it is aware of everything that the opposing party has in its possession.
The purpose of the civil discovery system under the FRCP is to give all parties to a dispute access to all information of which the other party is aware. In modern practice, the surprise witness or unexpected evidence is rare, precisely because the FRCP allows such broad pretrial discovery. The four forms of discovery discussed in this post are part of that process, and enable each party to a case to develop the best possible case to later present to a jury at trial.