Discovery

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WHAT IS DISCOVERY?

Each party in a legal case has the opportunity and the right to learn about the strengths and weaknesses of the other party’s case. Some of the information, called Initial Disclosures, must be disclosed to the other party at the beginning of the case, and the party with the information must provide it to the other party without being asked for it. Other information must be uncovered via the discovery process, which means that the party with the information must provide it, but only if asked via a discovery request.¹See https://www.utcourts.gov/howto/courtprocess/disclosure-discovery.html

Essentially, a party must disclose to the other party the information, documents, and witnesses, among other things, that support the party’s allegations and/or defenses. “Discovery” refers to the procedures by which each party learns about the information, documents, and witnesses that the other party does not have to disclose otherwise.²See id.

Each party must immediately and recurrently disclose any additional documents and/or information as they become known to the other party. If a party fails to provide the information, documents, or witnesses that should have been disclosed or fails to provide discoverable information when asked for it, the judge might not allow that party to use said information, documents, or witnesses at trial.³See id.

There are different types of discovery and different ways to request discovery.

WHAT ARE THE DIFFERENT TYPES OF DISCOVERY?

Depending on the amount of damages (i.e., money to restore the claimant’s integrity) claimed in a case, a party is entitled to a certain amount of standard discovery—meaning the number of depositions, interrogatories, requests for admission, and requests for the production of documents in a case. If a party requires more than the standard extent of discovery, the parties can stipulate to extraordinary discovery, or a party can file a motion asking the judge to order extraordinary discovery.⁴See id.

WHAT CAN BE DISCOVERED?

Parties to a case may discover any non-privileged matter relevant to the claims or defenses of any party and if the discovery satisfies the standards of proportionality. Privileged matters that are not discoverable or admissible in any proceeding of any kind or character include all information in any form provided during and created specifically as part of a request for an investigation, the investigation, findings, or conclusions of peer review, care review, or quality assurance processes of any organization of health care providers as defined in the Utah Health Care Malpractice Act to evaluate the care provided to reduce morbidity and mortality or to improve the quality of medical care, or for the purpose of peer review of the ethics, competence, or professional conduct of any health care provider.⁵See Utah Rules of Civil Procedure, Rule 26(b)(1)

WHAT ARE THE METHODS OF DISCOVERY?

Parties may obtain discovery by one or more of the following methods: (i) depositions upon oral examination or written questions; (ii) written interrogatories or requests for production of documents, things, or permission to enter upon land or other property for inspection and other purposes; (iii) physical and mental examinations; (iv) requests for admission; and (v) subpoenas, other than for a court hearing or trial.⁶See id. at 26(c)

WHAT DO I DO IF I AM SERVED WITH DISCOVERY REQUESTS?

If you are served with discovery requests (or “requests for discovery”—same thing), you must answer the discovery to the best of your ability. You are not excused from making disclosures or responses to discovery because you are not finished investigating the case. If you do not disclose or supplement your disclosures timely, you may be unable to use the witness, document, or material at any hearing or trial.⁷See id. at 26(d)

Additionally, if you fail to provide adequate discovery responses, in Utah, the opposing party may file a Statement of Discovery Issues, as well as a motion for an order requiring the other party to pay the reasonable costs, expenses, and attorney fees incurred in showing that you did not provide adequate discovery responses.⁸See id. at 37(c)

The aggrieved party who is unable to obtain responses to discovery from the opposing party may ask for the following sanctions:

1. deem the matter or any other designated facts to be established in accordance with the claim or defense of the party obtaining the order;
2. prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence;
3. stay further proceedings until the order is obeyed;
4. dismiss all or part of the action, strike all or part of the pleadings, or render judgment by default on all or part of the action;
5. order the party or the attorney to pay the reasonable costs, expenses, and attorney fees, caused by the failure;
6. treat the failure to obey an order, other than an order to submit to a physical or mental examination, as contempt of court; and
7. instruct the jury regarding an adverse inference.⁹See id. at 37(b)