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Legal Information

Before the Trial

How do I request documents from the other party?

To prove your case, you sometimes need to get documents from the other party. You can use “discovery demands” to get the documents that you need from the other side, although the process can vary by state. A discovery demand is a written request for specific documents that the other party has in his/her possession. In certain cases, you might be able to write a letter to the other side and request the documents that you need. However, in more formal cases, you will likely have to draft more formal discovery demands. There are usually forms available for this in local law libraries, from the court clerk’s office, or online.

One thing to keep in mind is that you can only send discovery requests to the other party. If you need documents or information from a person, organization, or company that is not a party in the court case, you might need to get a subpoena from a judge. Go to Can I get documents from someone other than the respondent? for more information.

What types of documents or items can I request in my discovery demand?

You can request documents that are relevant to your court case that the other party has access to. You can also request physical items to look at (“inspect”). This can include:

  • letters;
  • emails;
  • photographs;
  • calendars or agendas;
  • financial information, like W2s, bank statements, and tax returns;
  • deeds or land contracts; and
  • other relevant physical items, like weapons, cell phones, or damaged property.

Can I get documents from someone other than the defendant?

You might be able to get documents from someone who is not involved in the court case by getting a subpoena duces tecum. A subpoena duces tecum is issued by a judge or sometimes a lawyer can sign a subpoena, in certain states and circumstances. The subpoena tells a person, a company, or another entity to produce certain documents that are important to a court case. If you need to get a subpoena, you can talk to the court clerk about the process in your county.

Keep in mind, however, that if you do subpoena a witness to testify, you might have to pay him/her for the mileage it takes to appear at court. This could depend on the state or court that you are in. You may want to ask the court clerk if you have to pay for a subpoena or pay a subpoenaed witness to testify in your case. It is also possible that the person you have subpoenaed could ask the court to dismiss the subpoena by filing a “motion to quash” the subpoena. For example, a person can ask for a subpoena duces tecum to be quashed if:

  • it is overly burdensome (demands too many documents or is too hard to respond to);
  • there is not proper notice, like if a person receives a subpoena hours before trial and s/he does not have time to make arrangements to appear; or
  • it asks for protected information, like conversations between a lawyer and client, things that are said to a therapist, or, in some states, communication between a domestic violence advocate and a victim s/he is working with.

How do I respond to a discovery demand that requests documents?

If the party who receives a document request has the documents that are requested, unless there is a valid objection, s/he has to produce them by:

  1. sending or delivering copies to the other party; or
  2. making the documents available for the other party to inspect.

When you send or deliver documents, you will make a list of the documents provided and include copies of the documents. Alternatively, you can send a letter to the other party to let him/her know when and where the documents will be available for inspection. Inspecting documents or items is usually done if the number or type of items/documents requested makes it impractical to provide copies. In your discovery response, you would include a time and place for the inspection and the other party has an opportunity to go and review the requested items at that time.

When you respond to a discovery request, you should make sure to do it within the timeframe listed in the discovery request or in the “scheduling order” if the judge issued one. In some cases, the judge will hold a court conference to establish a timeframe for discovery, motions, and the trial. You should pay attention to these deadlines because if you miss a deadline, the other party might file a motion to compel discovery.

In most cases, you will only send your discovery responses to the other party. There are cases though where the court, not the other party, will request information. This usually happens in divorce or child support cases. In these cases, when you receive a notice from the court, you should send your response back to the court and, in addition, send a copy to the other party.

How do I object when I do not want to turn over a document?

If you receive a discovery demand that requests documents that you do not want to provide, there may be ways to avoid turning those documents over. You cannot destroy the documents because that could result in serious consequences for you and for your case. You can write back to the person making the request and explain why you are objecting. You must have a valid reason to object to giving the other party the documents. Some valid reasons are:

  • the requested document is not relevant to the case;
  • the documents are protected by a “privilege”—for example, letters back and forth to your attorney, or your psychiatrist’s notes; or
  • the request is overbroad and not specific enough to provide documents relevant to the case. In other words, the request will produce documents that are well beyond the scope of the case and are not relevant.

If you object to a discovery request, generally you have to let the other side know that you are not giving him/her documents that s/he has asked for. The other party might not respond, or s/he could file a “motion to compel discovery.” A motion to compel discovery is a written request to the judge in which the party seeking discovery asks the judge to issue an order requiring that the other party turns over the requested documents by a certain date or face certain consequences.