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CHAPTER 8: OVERVIEW OF CIVIL CASES - Table of Contents

8.1 - Introduction8.2 - Where to find civil law8.3 - Starting a civil case: the complaint8.4 - Serving the complaint8.5 - Responding to the complaint8.6 - Requesting a jury8.7 - Alternate Dispute Resolution8.8 - Initial Procedural Requirements8.9 - Pretrial Discovery8.10 - Summary judgment motions8.11 - Trial8.12 - Damages, Costs and Attorneys Fees

8.9 PRETRIAL DISCOVERY

In addition to the basic information required to be disclosed by Rule 26(a)(1), civil parties have a variety of other mechanisms to "discover" information about the factual issues in the case. The most common of these discovery mechanisms are interrogatories, requests to produce documents, requests for admission, and depositions.

Interrogatories are written questions which the party receiving them must answer under oath. For instance, in a simple car-accident case involving possible brake failure, the injured plaintiff may be served with interrogatories asking him to describe all injuries received in the accident and all medical treatment received for those injuries, and to provide a list of all resulting medical expenses. The other-driver defendant, on the other hand, may be served with interrogatories asking her to identify all mechanical work performed on her car for the preceding 12 months and to list any statements received from any accident eyewitness. Some "pattern" or sample such interrogatories approved by the Colorado Supreme Court accompany the Colorado Rules of Civil Procedure. Both interrogatories and their responses are typically drafted by counsel rather than the individual parties, although the responding party must certify their correctness under oath.

Document-production requests are written requests for documents and other tangible things to which the party receiving them must respond. To continue with the above car-accident example, the plaintiff may be asked to produce his medical records (or a release authorizing the other party to obtain them directly), and the defendant may be asked to produce all car-repair records as well as, potentially, the tangible brake-line claimed to be defective.

Requests for admission are written statements which the party who receives them must either admit or deny. Such requests are often used to limit some of the issues which might otherwise be anticipated in a case, or to remove any potential objections to the admissibility of particular items of evidence.

A great deal of civil litigation is often consumed with disputes arising over these written discovery mechanisms. A party may object to particular document requests or interrogatories. For example, an injured plaintiff may object to requests for information or documentation about his lifetime medical history going back years before the accident or about prior counselling records. By the same token, a product-liability defendant may object to requests for information or documentation about all other injuries reported as having been caused by the products it manufactures. A party wishing to resist particular discovery efforts may file a motion for a protective order, in which the judge is asked to preclude or limit particular inquiries. Similarly, a party wishing to force her opponent to respond to discovery requests may file a motion to compel meaningful or more thorough discovery responses. These motions often lead to one or more pretrial hearings before a judge (or a designated magistrate), who ultimately issues an order as to what discovery is to be permitted. Such an order may then be enforced, as is the case with other judicial orders, by contempt or by other sanctions, such as prohibiting the introduction of evidence on a particular issue by a party found not to have fully responded as ordered. In making these determinations, the judge (or magistrate) is not determining whether the requested information or documentation would ultimately be relevant at trial, but is instead determining first only whether the requests are reasonably likely to lead to any relevant and admissible evidence, a much lower standard. Once that standard has been found to have been met, the judge must still ordinarily determine additional issues, such as whether the sought discovery would impermissibly intrude on an individual's legitimate privacy interests or is otherwise "privileged" from inquiry, or whether responding to the discovery requests would require unreasonable effort or expense.

The final common type of discovery is depositions. A deposition is merely questioning that takes place, usually in person, under oath and in front of a court order. In the above car-accident example, defense counsel may wish to ask questions of the injured plaintiff, to find out more about how he claims the accident occurred or about his claims for injuries, medical expenses and lost income. To simplify the procedure, defense counsel would provide a written notice of such deposition, to be held at a mutually agreed place and date. This deposition would then be attended by the plaintiff, his attorney, defense counsel and a court reporter. No judge is present, and no judge would usually become involved in the process at all, other than to resolve (at some time) claims of privilege. The witness is asked questions, and although his attorney may periodically object "for the record," the witness must usually provide responses. A written transcript is then prepared, which in some instances may be read aloud at the subsequent trial in lieu of live testimony. More commonly, portions of the deposition transcript are used at trial to "impeach" (or contradict) any contrary trial testimony by that same witness.

The Colorado Rules of Civil Procedure contain limits on the timing, extent, scope and length of depositions and other discovery mechanisms. The parties' Case Management Order also supplements these limits.

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