Everything. Just kidding, not everything, but a lot of things are. Material is discoverable if it is relevant to a claim. Or if it is something that is not seen as privileged by the court under the state or federal rules of procedure. Such things include the amount of money in dispute, how importance the item is to the action, how much money the parties have at their disposal and whether the burden of getting something to be discovered by the court overwhelms the benefit it would have.
We are certain there are things you know are not discoverable. These things include:
- Communications between
- Clergy (Yup believe it)
- Sometimes even journalists (If they lied to you go after them for defamation)
- Anything you said while invoking the good ol’ fifth amendment.
- Some types of evidence
- Sometimes work samples (like trade secrets unless in dispute)
Things you must disclose:
- Where you obtained information that was discoverable
- Aliens from outer space (don’t be on this one working for you)
- Electronic Resources
- The internet (don’t rely on this one either)
- Insurance companies/agreements/policies
- Various documentation
What about all that good info that the other side doesn’t want you to have?
You have to request them to produce those things or go get them yourself! If they do not produce what you need you can ask the court for assistance. Here are some things attorneys do:
- A list of questions that are given to the other side which the other side has to truthfully answer
- A professional request
- If you ask a party to produce something in writing, such as emails that were not classified then they have to do this as well
- You can send over a list of questions asking them to admit or deny certain things before trial.
- If you’re dealing with personal injuries you can ask the other side to show that a physical injury is at issue, or one involving mental capacity. So, if the other side said he is suing you because he has three broken fingers, you can ask to see the doctor’s report. (Maybe he only has one broken finger…or none at all).
That’s good and all, but what if the other party still doesn’t’ give me information I know they have.
A motion to compel my friend. Say it slowly with me. A-Motion-To-Compel. Your counsel, in shining armor will ask the court for assistance. The court if they agree with your counsel will force the other side to disclose to you the information you seek, as long as you first, attempted to notify the other side you needed the information.
Sanctions. Dun Dun Dun.
That’s right, a failure to disclose everything leads to sanctions. Sanctions can vary and the court could simply scold the other party, not let them object to certain things or appeal certain things in court, or they can hold them in contempt, toss out the case, or even fine them some money. It all depends on the severity of the infraction. In class actions the court may even award the other party attorneys fees.