What is pre-trial discovery and when is it used? Did you know there are multiple types? In this 5 Minute Legal Master Series, Board-certified creditors’ rights specialist, Nicholas D. Krawec, explains more about this commonly used tool.
Pre-Trail Discovery Transcript
Pretrial discovery as the name would entail being pretrial becomes an issue when you are in contested litigation. The defendant has filed an answer maybe some affirmative defenses and counterclaim. As the plaintiff was brought the lawsuit and it was possible the counterclaim you want as much information as possible about the allegations that are made in the defendants defenses and in the counterclaim. Similarly, the defendant will want as much information as possible from you as a plaintiff regarding your evidence in support of your claim. The evidence that you have to rebut the defendant’s affirmative defenses and the evidence that you have in opposition to his counterclaim.
Discovery, pretrial discovery, is essentially it’s an information and evidence exchange. Each party gets information from the other so that there is no surprise or ambush at trial. But also, this is very important for the creditors perspective, if an answer is like a general denial or a demand for proof for something that is really an effort to buy time or a stall if you will, discovery, pretrial discovery, can be used in order to set up, set the case up for a motion for summary judgment and summary judgment again is another topic. That’s going to be in our legal master series.
But talking about pretrial discovery there are there are two types of pretrial discovery. There’s written discovery which is typically in the nature of requests for admissions which asked, each party asked the other to admit the validity and the truth with certain facts so as to minimize the issues for trials and to eliminate the need to having to prove those fact’s at trial.
Interrogatories are pretty much open ended questions in terms of what the party knows about the transaction and what information they have about transactions. The Request For Production of Documents is a request by the other party to see what documents you have in terms of document’s you will use to prove your case or documents that you have to refute the defendant’s defenses or the defendants counter claim. Documents can also be subpoenaed from a third person or third party who was not a party to the litigation. Either party can do that if there’s a third party who has knowledge and documentation that is relevant to the litigation thats going on.
The other type of pretrial discovery will be that would be depositions that’s oral testimony, before in court reporter the attorney’s office under oath convened by a notice of deposition to a party to the case or a non-party to the case can be subpoenaed to testify as a fact witness. As far as the standard for discovery, in terms of what can be inquired into, it’s not so much whether something is going to be admissible a trial. The area that can be inquired into in discovery is whether or not the area asked about is reasonably calculated to lead to the discovery of evidence which would be admissible at trial.
So there can be questions asked that deposition. Hearsay can be listened to the depositions and you know something that may not be admissible trial that could be admissible, usually are in this for the deposition because you are seeking information that could lead to the discovery of admissible evidence. Pretrial discovery obviously is a is a two way street, as I mentioned earlier, the defendant can take the plaintiff deposition or the deposition of any representative of the plaintiffs company having knowledge of the facts that are in controversy. The deposition notice would be directed to a particular person the plaintiffs organization or the deposition notice can go to a corporate designee where they identify the areas of inquiry and the party who is served with a noticed can identify the person who would respond to that to that notice deposition.
So, the opposing party can serve written discovery on you its a time-consuming process but you were involved in helping the attorney respond to the written discovery and there’s a requirement of full disclosure except for anything that’s protected by attorney client privilege or attorney work product or trade secret of proprietary information.
Otherwise you have to produce documents do have. There is no hiding the document for saving them for trial because, as I said earlier, discovery is to prevent surprise or ambush at trial. Bottom line, if a matter is referred to the attorney for collection you get into contested litigation and discovery starts up, your involvement is not over. It may well increase, particularly once pretrial discovery starts. Your a partner in litigation to your attorney your a partner in the discovery, and its important that you participate fully to the maximum extent possible.