Understanding Discovery in a Personal Injury Lawsuit
Both sides in a personal injury lawsuit need a lot of information to prepare for trial. They need information about the parties, what happened, and the evidence each party will present in court. The process for sharing this information between the parties is called “discovery.”
Discovery is available for “any matter, not privileged, which is relevant to the subject matter involved in the pending action.”
Massachusetts law allows the following types of discovery:
- Requests for admission. One party asks another, for the purposes of the pending action only, to admit the truth of any relevant fact. The purpose of requests for admission is to save the parties and the court time by avoiding the unnecessary litigation of undisputed facts. For example, at some trials, the major issue in contention is the extent of the plaintiff’s injuries, not whether the defendant caused them. In this case, the plaintiff may ask the defendant to admit that they caused the injuries to avoid litigating that issue at trial.
- Interrogatories. An interrogatory is a written question. One party sends a list of interrogatories to the other party near the beginning of the litigation. Interrogatories are used to establish basic information. An attorney is allowed to draft their client’s responses to interrogatories.
- Production of documents. This discovery method allows a party to access and make copies of another person’s records and similar items. For example, if the plaintiff claims they missed time from work, the defendant may request that the plaintiff’s employer produce all employee pay stubs for the previous two years.
- Inspection of land. Often, a party or their attorney wishes to inspect the site where the accident took place. If the accident happened on private property, then the party may request that the owner allow them access to examine the area of property where the accident occurred.
- Physical and mental exams. If a person’s medical or mental state is relevant to a personal injury claim, a party may wish to have that person examined. This discovery implicates robust medical privacy laws and sensitive health information. Accordingly, a court order is required to proceed with such an exam.
- Oral depositions. Here, a party asks another party or witness questions under oath. They are usually conducted later in pre-trial discovery proceedings. Oral depositions have an advantage over interrogatories in that follow-up questions are allowed. The party, not the party’s lawyer, must answer the questions.
- Written depositions. These may be conducted when a person is not readily available, such as an incarcerated individual or a person located out of the country. However, with the advent of video conferencing and other technology, written depositions “are little used.”
Often, most information is discovered through interrogatories, requests for the production of documents, and oral depositions.
Limitations on Discovery
The general rule that discovery is “not limited” except by rules of procedure and evidence. However, if a person subject to a discovery request feels annoyed, embarrassed, oppressed, or unduly burdened, they may request a protective order.
This order by the court may set limitations on the requested discovery, including:
- Denying it
- Allowing it, subject to specific terms and conditions
- Allowing it, but in a different method
- Restricting it to certain matters
- Restricting the persons present during the discovery.
Probably the most common objection to a discovery request is that it “imposes an undue burden.”
When considering a protective order based on undue burden, a court examines the following factors:
- Possibility of obtaining the requested information from a source that is less burdensome;
- Whether the requested discovery is unreasonably duplicative; and
- Whether the cost of the proposed discovery outweighs its benefit.
Once the motion for a protective order is granted or denied, the losing party generally must pay the expenses associated with the motion.
The general rule is that a party who has fully and completely responded to discovery has no duty to supplement their response if more information later becomes available. However, there are several exceptions.
First, a party must supplement their response in a timely manner with respect to:
- The identity and location of those with discoverable knowledge; and
- The identity of any person who is expected to testify at trial as an expert witness, including the expert’s subject matter of testimony.
Second, a timely supplemental response is necessary if a party finds out their answer was incorrect when made or has since become incorrect.
Third, a court may order supplemental responses, or the parties may agree to it.
Finally, later in the pre-trial phase, a party may simply send out new requests for discovery, asking for supplemental responses.
The past thirty years have posed a challenge to discovery as courts grappled with handling information stored electronically. The solution in Massachusetts is to have a conference between the parties to discuss how to handle electronically stored information (ESI).
Topics of discussion include:
- Preservation of discoverable ESI
- Format of production (e.g., CD, file transfer, cloud-based, or other)
- Privilege and confidentiality of ESI
- Any other issue applicable to the discovery of ESI.
Based on the results of the conference, the court may enter an order governing how the discovery will proceed.
Notwithstanding the agreement of the parties at the conference, the court may limit the discovery based on the following factors:
- Availability of ESI through other, less burdensome sources
- Whether the ESI sought unreasonably duplicates information already received through other discovery methods
- The extent to which the parties had the opportunity to discover the ESI through other discovery methods
- Whether the burden of the discovery outweighs the benefit
The court may also set any other conditions and limitations it deems proper.
Good discovery is key to getting the information needed for your personal injury claim. Our experienced lawyers understand the law of discovery and how to use it to help get you the compensation you deserve.