In most civil legal actions (these include everything from a personal injury lawsuit or medical malpractice case to a divorce), the parties have the right to collect information from the other parties as well as interested third parties. This information gathering is known as the Discovery Phase of a case. Discovery is very important because it reveals many of the facts in a case and many of those facts can only be learned through this formal legal process. Here are some examples of material that I have received from the defense during Discovery:
- In a slip and fall on ice case at a Metro North Station, I received the contract for snow removal, which made clear that Metro North was responsible for my client’s injuries.
- In a medical malpractice case against a nursing home, I received the medical records that documented a lack of patient monitoring and included evidence of false entries to cover up malpractice.
- In a pedestrian accident case against Con Ed and its construction contractor, I learned that the contractor had an on-the-job inspector whose presence made the contractor liable for my client’s injury.
- In a medical malpractice case, the discovery produced medical records that revealed lack of adequate patient monitoring and a failure to conduct standard blood tests.
- In a car accident case in the Bronx, the discovery produced documents that refuted the client’s defense and led to a finding of liability against the defendant.
You can see that the way an attorney conducts discovery can determine the outcome at trial. In this article, I review the discovery process as it works in a New York personal injury case. This process may vary in family court matters and in other states, but this review should give you a basic understanding of the Discovery phase of a civil litigation.
Exchanging Information in a Personal Injury Lawsuit
During the Discovery phase, both parties are required to exchange information, including:
- Names of witnesses
- Records and documents, such as police reports, incident reports, complaints, etc.
- Expert reports
- Medical records
During the Discovery Phase, both parties have the right to depose the plaintiff and defendant. If the defendant is a business, then we have the right to depose employees with knowledge of the case. In a construction accident, that might mean we can depose the foreman or project manager. In a medical malpractice case, we might depose a doctor or other staff who worked on a patient including nurses, therapists and even medical record staff.
If the plaintiff is claiming medical injuries, then the defense has a right to have a doctor of their choosing examine the plaintiff. In New York, this exam is known as the Defense Medical Exam (DME).
The Discovery Phase usually begins with the exchange of two documents:
- The Defendant’s attorney serves a Discovery Demand. This document lists information that the defense wants the Plaintiff to provide. The Discovery Demand usually accompanies the Answer and the Demand of a Bill of Particulars.
- The Plaintiff serves a Notice of Discovery and Inspection: This document lists information that we want the Defense to provide. This usually accompanies Bill of Particulars.
As you might imagine, many firms use the same standard list of Discovery Demands. I work hard to tailor each Discovery request to the particular case and my knowledge of the defendant. The more particular we can be in making the Discovery request, the more information we can unearth that can help our case.
There are three basic responses that each side can make to each item on the list of requested information:
- Respond with the information.
- State that more time is needed to gather the materials and provide them at a later date.
- Reject the request as inappropriate.
I try to respond as quickly as possible so that we can keep moving the case and I closely monitor the response from the defense. Sometimes we receive records that lead to requests for more information or depositions. For example, in a work site case, the records revealed the name of a key supervisor and then I requested a deposition of that person. In a deposition, a witness may refer to manuals or records that we then request to see.
Often times, defense law firms will stall in responding to discovery requests. Sometimes they seek to hide incriminating information. The cynic in me thinks that the defense firms that routinely delay in responding to discovery requests are looking for ways to bill their clients more or to wear down a plaintiff. It is also true that the defense attorney may have trouble collecting information from their clients.
Putting Pressure on the Defense to Respond to All discovery Requests
I make it a practice to press the Defendant for a timely response and do not take no for an answer when I want to see evidence. I do not depend upon the good graces of the defense. When sending the Bill of Particulars, I usually file two documents with the Court:
The Request for Judicial Intervention (RJI) simply means that we ask the Court to get involved by scheduling a Preliminary Conference. The Preliminary Conference is crucial to moving a case and to ensuring a response from the defense during the Discovery Phase. The Preliminary Conference is a meeting of the lawyers from the parties with the judge and involves several key actions:
- If a party has not provided requested information, the judge sets a deadline for that response.
- If a party objects to a Discovery request, the judge rules on that request.
- The parties agree to a schedule for depositions.
- The parties agree on a schedule for a medical exam of the plaintiff, if necessary.
The Preliminary Conference gives some teeth and structure to our Discovery demands. If the Defendant fails to respond according to the schedule agreed upon at the Preliminary Conference, we can go back to Court to force the Defendant to respond. We can also the judge to penalize the Defense for failing to respond to our requests in a timely manner. This punishment, known as court sanctions, could take several forms. The judge could strike the Defendant’s answer to our summons and complaint, meaning the Court would find the defendant liable for the allegations. Given the severity of the penalties, the Defendant usually complies.
Putting the Case on the Trial Calendar
After we complete the Discovery phase of the trial, we are ready to go to trial. I then file a Note of Issue with the Court and ask the Court to place the case on the calendar. We cannot file the Note of Issue until we have completed the Discovery Phase.
Sometimes the completion of the Discovery phase can lead to a settlement. Once all parties have the information they need to assess a case, then a settlement becomes more possible.
I hope you found this information helpful. Please call or email me if you have comments, questions or would like assistance with a personal injury case. You can also visit my website.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.