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Discovery, Part I

By David B. Collins

Discovery is a means by which parties learn information about the case. Discovery includes written discovery to parties, obtaining documents and/or things from third parties and depositions of parties and witnesses. In this article, I will discuss written discovery and obtaining documents and things from third parties. I will discuss depositions of parties and witnesses in the next edition.

Written Discovery

Written discovery consists of interrogatories and requests to produce. Interrogatories are questions that must be verified or answered under oath by a party. A request to produce itemizes documents and “things” a party is required to produce; if the party, its insurer and/or attorney has possession of the requested item(s). A party’s attorney can verify that the response is complete.

Preparing responses to written discovery requires collaboration between the defense attorney/the defense attorney’s staff, the client and, if there is insurance coverage for the claim, the client’s insurance carrier. Sometimes, a client’s personal attorney must also be involved in the process. The answers to interrogatories and the response to the request to produce must be true, accurate and complete. A party may be precluded from using information that was not disclosed, so it is critical that all requested information either be provided or that an objection be interposed. Objections to certain interrogatories and/or requests, if warranted, must be made to preserve a party’s rights. Objections are sometimes challenged in court. Depending on the ruling, the client may be required to answer, or more fully answer, an interrogatory or produce documents and things it had objected to producing.

Obtaining Documents and Things from Third Parties

After written discovery is responded to by the parties, the parties may obtain documents and things from non-parties, i.e. medical records from healthcare providers, records from service providers (i.e. telephone records, school records, etc.) and personnel records from employers.

Records from third-parties are typically subpoenaed. Often times, an order entered by the judge overseeing the litigation, or an authorization executed by the party who is the subject of the requested documents, must accompany the subpoena. For example, a healthcare provider cannot simply release records in response to a subpoena; there must be an agreed HIPAA (Health Insurance Portability and Accountability Act) Qualified Protective Order which must accompany the subpoena, before the healthcare provider will release the records.

If the lawsuit is venued in an Illinois state court, documents and things in the possession of individuals and entities located outside the state of Illinois are not subject to an Illinois subpoena. As such, an authorization executed by the party who is the subject of the documents and/or things being sought must execute an authorization, allowing the individual or entity located out of state to release the requested items. If the party refuses to sign an authorization, counsel representing the party seeking the information may have to file a motion to compel the party to execute an authorization. Occasionally, despite having a valid authorization allowing the disclosure of the information, an out-of-state person or entity will refuse to produce the requested material. It is then necessary to obtain the services of an attorney located in the state where the person or entity is located, to file an action to obtain a court order requiring the person or entity to produce the requested documents and/or items.

Documents and things in the possession of governmental entities may be obtained by a Freedom of Information Act (FOIA) Request. Many governmental entities have a designated department, or individual, who reviews FOIA requests. There are deadlines for governmental entities to respond to FOIA requests, and penalties can be assessed for a governmental entity who does not timely respond to a request. Thus, information that is requested from a governmental entity pursuant to a FOIA request is generally provided quickly, although some of the requested information may either be redacted or not produced, based upon FOIA guidelines.

Written discovery and obtaining documents and things from third parties are crucial to properly evaluating and prosecuting and/or defending lawsuits. If you have questions about these processes, do not hesitate to contact the attorney handling your case.

Click here to read Discovery: Part II.

Originally published in the Spring 2012 edition of Quinn Quarterly.