DOCUMENT PRODUCTION, INTERROGATORIES, SUBPOENAS & DEPOSITIONS
Discovery refers to the stage of a lawsuit where the parties investigate the facts and gather evidence. In State courts in New York this is referred to as disclosure. Federal courts refer to it as discovery.
There are several discovery devices available to litigants. One is to take the deposition of parties and non-parties. In the State court, this is called an examination before trial or EBT. In Federal court, it is simply referred to as a deposition. To take the deposition of a party to the lawsuit, one need only serve a notice by mail. To depose a non-party, however, you must serve a subpoena. Deposition testimony is sworn testimony that is recorded by a court reporter in a transcript which may later be used as evidence at trial or to impeach and cross-examine a hostile witness. Typically, depositions aid settlement because the parties may begin to realize the relative strengths and weaknesses of their case and become more willing to compromise. This is not always the result and, of course, some litigants become more entrenched in their positions.
Typically, before taking the deposition, the lawyer conducting the deposition will want to obtain records and documents from the other side. In State court this is accomplished with a device called a notice for discovery and inspection. In Federal Court it is called a request for documents. Parties may also seek answers to written questions called interrogatories. There are limits to the amount of interrogatories that may be asked. Although there are other discovery devices, these are the most common in commercial litigation.
Discovery disputes also occur frequently in commercial litigation. Documents may be requested but the other side may not cooperate or maybe refuse to produce items. Sometimes, it is necessary to seek the intervention of the Court to obtain a ruling either to compel production of items or to preclude the non-producing party from relying on that item as evidence in the case. This can often result in motion practice however, courts usually require that the parties have a conference first and obtain permission of the Court before filing a discovery motion. The Courts look to resolve these disputes by conference rather than litigation whenever possible. In the State Court, the conference is referred to as a preliminary conference.