Written by attorney Brandy Ann Peeples

Civil Litigation 101: What is Discovery?

So, you’ve filed a civil lawsuit against someone or some entity. Now what? A lot happens between the time one actually begins the litigation process and the time when one actually gets his/her day in court. In Maryland, to litigate a case from inception (filing a Complaint) to end (trial) can take a few months (in District Court situations), or it can take a year or more (Circuit Court).

Whether you’re in the District Court or whether you’re in the Circuit Court (a discussion on the jurisdictional requirements of each court will be done in a separate blog) doesn’t matter for purposes of this blog entry because both courts (although more limited at the District Court level) permit the discovery phase of litigation to happen.

What is discovery?

Discovery is the pre-trial phase in a lawsuit in which each party — the Plaintiff or the Defendant — through a State’s rules of Civil Procedure does its fact finding. That is, either party can utilize the discovery process to obtain evidence from the opposing party by means of certain discovery tools. Discovery tools may be written and include Interrogatories, Requests for Production of Documents, and Requests for Admissions of Fact. Or, parties can take the deposition — live testimony taken under oath before a court reporter — of opposing parties or other fact witnesses. Discovery can be obtained from non-parties using subpoenas. In Maryland, the discovery rules begin at Section 2-401 of the Maryland Rules of Civil Procedure for Circuit Court proceedings and Section 3-401 for District Court proceedings.

Indeed, on discovery, Maryland Courts have stated: “One of the fundamental and principal objectives of discovery is to require the disclosure of facts by a party litigant to all of his adversaries. If all of the parties have knowledge of all of the relevant, pertinent and non-privileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able to properly prepare their claims and defenses, thereby advancing the sound and expeditious administration of justice." See Blades v. Woods, 107 Md.App 178 (1995).

Generally speaking, in Maryland the scope of discovery (i.e. what you can and cannot obtain from the other party and from fact witnesses) is broad. Maryland Rule 2-402(a) provides:

A party may obtain discovery regarding any matter that is not privileged, including the existence, description, nature, custody, condition, and location of any documents, electronically stored information, and tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought is already known to or otherwise obtainable by the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contention that relates to fact or the application of law to fact.

What that statutory language means is this: Either party is permitted to obtain information that is deemed “reasonably calculated to lead to the discovery of admissible evidence" even if that information is not quite relevant to the subject matter of the lawsuit. Often the discovery process yields information that may not be admissible at trial, yet that same information may be helpful to a party in preparing that party’s case.

Keep in mind, a party is not required to disclose all information within its possession during the discovery process. Certain types of information are generally protected from discovery. Things like an attorney’s work product (defined by The Free Dictionary as “written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation") or communications between an attorney and his/her client (known as the “Attorney-Client Privilege") are not discoverable.

In Maryland, discovery is usually confined to a specific time period set forth by a Scheduling Order. Scheduling orders facilitate the case management process, set forth deadlines, and are required in every civil action filed in Circuit Court by Maryland Rule 2-504. Scheduling Orders enable either party to have ample time within which to conduct discovery, while at the same time they also prevent discovery abuses. For example, if properly requested discovery hasn’t been produced by a case’s discovery deadline, then it’s likely a party won’t get to use that information at trial.

Lastly, not all parties “play nice" during the discovery process. Failure to answer Interrogatories within certain time limits or failure to produce requested documents as directed can result in certain sanctions — some of which can be fatal to a party’s case — being imposed upon a party.

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