WomensLaw is not just for women. We serve and support all survivors, no matter their sex or gender.

Legal Information

Before the Trial

View all

What is discovery?

In some court cases, the parties are required to give each other information and documents about the case before there is a trial. This exchange of documents and information is called “discovery,” and there are rules in every state about how and when discovery happens. Usually the parties have to send written requests, also known as demands, to the other party to get this information.

This exchange of information lets the parties know what evidence the other side will be presenting at trial. Exchanging discovery helps to make the trial run smoother and it often helps the parties reach an agreement or settlement without having to go through a trial. Knowing what kind of documents or information you can ask for, how to use depositions, and how to respond to discovery requests that you receive, can be an important part of winning your case.

For example, let’s say you are getting divorced and there is an issue about whether the marital home is the separate property of your spouse or whether it is marital property. Through discovery, you can make a document request to show that you made financial contributions to the home or that mortgage payments came from a joint account. To get more specifics about the allegations in a complaint or counterclaim, you could demand a bill of particulars. If you are wondering who the other side is calling as witnesses, or if the other side plans to call any experts to testify, you can make a request for a witness list to get that information. You also could send interrogatories to your spouse with detailed questions about the property, and you could question your spouse about the property during a deposition to establish that you helped with the upkeep of the property. You could then present all of this information to the judge at trial to prove that you were involved with the property and, therefore, the property should be considered marital property and subject to equitable distribution. This is just one example, but as you can see, discovery is an important information-gathering tool.

Does discovery happen in every case?

Discovery does not happen in every case. There is discovery in most civil court cases where one party sues another party for money damages except, small claims court. Cases that involve discovery can sometimes take a year or more from start to finish.

Other cases happen much quicker, sometimes called “summary proceedings,” where there might be less formal discovery or no automatic discovery at all. Family court cases, other than divorce, will fall into this category in some states, as well as most eviction proceedings. In cases where discovery is less formal, you may be able to request documents by writing a letter to the other side or even by orally asking for them in some cases.

The court itself will handle discovery in some cases, like child support, where parties are required to turn financial documents into the court. In cases where the court itself handles discovery, usually the court clerk will send out a letter to the parties to request necessary documents or information. The parties have to send this information to the court by the date on the letter. Sometimes the clerk will include a court order listing the required documents if a judge puts the request in a court order. You usually have to send in the information or documents before the first court date.

If you are involved in a court case and you believe that discovery may benefit you, you might be able to ask the judge or the court clerk if there is discovery allowed in your case. The judge can sometimes grant discovery even if it is not automatic in a certain case. This section will provide a basic overview of some of the tools that a party can use to get discovery from the other side and how to respond to discovery requests that you get.

What if the abuser is using discovery as an abuse tactic?

In some cases, an abuser might send unnecessary discovery demands as a way to continue the abuse. Keep in mind that you have to respond to valid discovery demands, but if demands are excessive or unrelated to the court case, then you may be able to object and get a judge involved. Abusers will also file excessive motions or unreasonably delay cases in some circumstances. This type of intentional misuse of the court system as a form of harassment is often called “litigation abuse.”

If you are facing litigation abuse, you may want to try proving to the judge that the motions the other party keeps filing are without a good reason, and s/he is instead filing to harass you. You can also argue that the unreasonable delay that could be caused by the discovery is also an abuse tactic. In some courts, you might then be able to get some type of order from the judge that will help to limit the litigation abuse or its effects. This does not happen often, but some of the things the judge may order are that:

  • the party bringing the excessive motions has to pay the attorney’s fees and costs of the other party;
  • the party who files meaningless motions has to reimburse lost wages and other expenses of the other party;
  • the abused party is excused from appearing at hearings or is permitted to appear by telephone;
  • no motions or petitions can be filed or that no court appearances can be scheduled without the judge’s prior approval; or
  • requests that cause excessive or unnecessary delay, like long adjournments or excessive discovery requests, are denied.