The Discovery Phase

A case in litigation goes through several different phases before conclusion.  In medical malpractice cases, much investigation of the facts and consulting of experts is undertaken to determine whether a provable case of malpractice exists.  However, this type of investigation or screening is usually limited because access to witnesses is not available.  In fact, the ethical rules prohibit an attorney from contacting employees of a hospital or physician's office who will be a defendant in an upcoming lawsuit.

Once the lawsuit is filed and the defendant answers the lawsuit, the case moves into what is called the discovery phase.  The word discovery is used because during this phase, facts and witnesses are discovered by the parties.  The discovery phase is broad and includes the taking of depositions, the sending of questions called interrogatories and the production of documents.

During the discovery phase, the rules are also interpreted very broadly to allow the parties to "discover" facts and documents that may NOT be admissible at trial.  In other words, the inadmissiblility of evidence does not bar it from being discovered.  The rules allow for the discovery of "any information reasonably calculated to lead to the discovery of admissible evidence." 

Most courts, either through motion by a party, or by rule (in Federal Court), issue scheduling orders which set forth deadlines that the parties must follow during the litigation.  One such deadline is the discovery cutoff.  This is the deadline by which the parties must complete all discovery.   It is usually set 30-60 days before the trial date.

This section will discuss in more detail the particulars of discovery and discovery methods.