How Attorneys Gather Evidence For Lawsuits

Monday, March 2nd, 2020
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Once a lawsuit is filed, attorneys and their clients must gather evidence in a process known as discovery. This process can result in evidence being found that was either known or unknown to one or both parties. Here are some details about discovery you should know if you are involved in a business dispute.

What kind of evidence can be gathered?

Although it may sound exciting, discovery takes place mostly outside of the courtroom and consists of attorneys sharing documents and evidence with each other. They can also meet face-to-face to ask questions of the other party. This is known as taking depositions. If the two parties have disputes over whether evidence is discoverable, a judge may have to step in to resolve the dispute.

The general idea is that during this discovery process, anything that pertains to the lawsuit at hand can be released. If it is legally protected, or privileged, that information may not have to be released. Attorneys will typically ask for the following when doing discovery for a lawsuit or dispute.

  1. The identity of someone who might know something about the case, or a witness who can confirm details
  2. The education and personal or professional background of a witness
  3. Any documents related to the dispute
  4. Detailed information on how a business is operated, especially if it is directly related to the lawsuit
  5. Any information or action a witness heard, saw, or did that pertains to the case

How is formal discovery done?

There are four main types of discovery that are used in lawsuits. You should expect to see these if you are involved in a business dispute.

Depositions: This is when one party and/or their attorney conducts face-to-face questioning of the other party or a witness. The person answering questions will answer under oath, and their responses will be recorded. Sometimes a witness cannot be present at a trial, so the answers may be provided to the jury if this is the case.

Interrogatories: This method consists of parties answering written questions. The answers are provided under oath and can be used in the trial.

Requests for production of evidence: This refers to one party asking the other for physical evidence. This is used to gather documentation like bills, medical records, contracts, and employment files. Physical property may be inspected using this discovery method as well.

Requests for admission: Similar to depositions, this is where one party asks the other to answer very specific questions under oath. But usually, this is done specifically to get answers regarding the authenticity of documents and facts.

Limitations to what information can be asked for

The information that can be gathered is broad and virtually endless, as long as it pertains to a lawsuit. But, there are some limitations to what attorneys can ask for (or demand) in the discovery process. The limits must be respected, as some attorneys try to gather evidence simply to harass the opposing party, and that is usually forbidden by courts.

Confidential conversations

There are some conversations that have legal protection. These sometimes include conversations between religious advisors and advisees, husbands and wives, doctors and patients, and lawyers and their clients. Legislatures and courts have usually reasoned that the free flow of information between these people should be protected. This means that it is not legal to require that written and verbal exchanges from the above be used as evidence except in some cases.

Keeping certain information confidential

When a party is required to share evidence during the discovery process, that doesn’t mean it can be shared publicly. The court may sometimes keep it private during the proceedings, and the party who received the information cannot share it. Information that should be kept private includes medications, sensitive business documents, and personal financial information. The judge may issue a “protective order” to keep information confidential.

Third-party privacy rights

Witnesses, family members of lawsuit parties, and their co-workers are protected in courts. Their privacy is a priority, so there are often limits to how much parties to a lawsuit can find out about them. If someone isn’t a party in the case, their private matters generally should not be requested or used as evidence.

Are you preparing for a business dispute or lawsuit?

If you are in the unfortunate position of dealing with a business dispute, whether internally or with another entity, contact an experienced attorney. The attorneys at Brown & Fortunato are prepared to assist you throughout the entire process of litigation, trial, or dispute resolution. You can reach us at (833) 228-6300 or contact us by email to learn more about our practice areas.