In the American court system, once a lawsuit is filed, both sides are entitled to conduct discovery in order to find out facts that are related to the case. There are rules (called the rules of civil procedure) which govern discovery. The word “discovery” itself refers broadly to the procedures for requesting and ultimately requiring the other side or other persons to provide factual information and things in the context of a lawsuit. This article is a very brief and summarized overview of the discovery process. For attorneys, this process is very normal, and very few unique issues arise in personal injury cases. For injured plaintiffs, however, discovery in a civil case is a different world that uses different terminology.
In Oregon, in a personal injury action there are generally three types of discovery. Those three types are 1) discovery of documents and things; 2) depositions; and 3) medical examinations. There is also another mechanism used in federal courts and in many other state courts (including Washington) called interrogatories. Interrogatories are written questions that require a written response.
In general, discovery is permitted when the subject matter is “reasonably calculated to lead to the discovery of admissible evidence.” These boundaries are constantly tested; however, in general, the areas of contention in a normal personal injury lawsuit tend to be few if any. Experienced attorneys have already handled most of these issues, and usually have a good feeling for what is within the scope of discovery.
Discovery of documents and things is handled with a request for production, although the title can vary – sometimes it might be called a request for inspection for example. The opposing party has an opportunity to raise objections, and then if there are issues that the two (or more) attorneys are not able to resolve, the attorney for one of the parties can make a motion to the court to get a ruling from a judge. Typically in a personal injury action the defense will seek photographs, witness information, and all related medical records and bills as well as a variety of other information. In Oregon, generally medical records are subject to discovery if they involve any treatment or examination of injuries relating to the accident, or if they involve relevant prior medical treatment that could relate to the injuries at issue in the case (prior treatment for a right knee injury, for example, if the plaintiff in the present case is claiming that the accident caused a tendon and cartilage tear in the right knee.)
A deposition is a procedure where a witness or party is requested to provide answers to questions under oath. There is an opportunity to raise objections to the questions, and after any objections to a question, the witness provides their answer. Court intervention can be sought to rule on objections, or to handle other difficult issues that occasionally can arises in a deposition. Usually, the deposition is stenographically recorded by a court reporter who uses a machine that records a shorthand version of the testimony that the court reporter then later transcribes into a full written record. The deposition may also be recorded by video. The deposition gives the attorneys a good idea how a particular witness will testify at trial and what the witness will say. It is also provides an opportunity to evaluate the witness on such subjective factors as personability. Most attorneys know that if the jury likes the plaintiff, the plaintiff will have a much stronger case than otherwise, even though this is a soft factor that does not shine through on the written documents.
Deposition testimony may also expose weaknesses in a case. At trial, the written transcript of the deposition may be used to challenge the credibility of a witness who offers different testimony at trial than what he or she testified to in deposition. The prior questions and answers may be read to a jury to underscore such differences in testimony.
In a personal injury action the defense may also request a medical exam of the plaintiff, and the defense calls this an “Independent medical exam” or IME. However, typically these are done by doctors who earn a large part of their salary from defense attorneys by writing reports that minimize the injuries and often attribute them at least in part to causes other than the accident in question. On the plaintiff side these exams re referred to as “defense medical exams” or DME’s. One caveat is that this is not always the case, and is only a generalization; some doctors that are requested to conduct medical exams for the defense in litigation are truly objective, and usually those are doctors for whom conducting medical exams for litigation purposes is not a large part of their practice.
That is a brief summary of the discovery procedures that come up in a typical personal injury case, and hopefully it is helpful.
This article is only a brief overview of procedures, and is not to be interpreted or construed as legal advice.