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"Discovery" is a process you can use before your trial to find out information from another party.
- The purpose of discovery is to find out the information you need to prove your case or defend against the claims being made against you.
- You must figure out who you believe knows information that may be important to your case.
- You have obligations during discovery to the other party as well.
There are several ways to ask the other party questions about the facts of the case and the opinions of any experts.
- The options available to you will depend on what court you are in (e.g., small claims, District Court, Circuit Court).
- You may learn about the identity of fact witnesses and expert witnesses and their knowledge through interrogatories to the opposing party, which is a written question or questions the other party must answer.
- You will also want to locate documents or tangible items that are important to your lawsuit. You can obtain the information through requests for production of documents to your opposing party.
- If you believe that there are facts about which both you and your opponent agree, you can serve your opponent with request for admissions and that statement will be considered true for all purposes of the trial.
- You may decide that you would like to find out in detail what the opposing party and his witnesses know and what the opinions the opposing party’s experts hold. You may explore their opinions and knowledge through depositions, which is a sworn statement that can be both oral or written.
- During discovery, your opponent will also ask you questions, which you will have to answer through these same methods.
Maryland Discovery Guidelines - Read the Maryland Discovery Guidelines. They are prepared by the Maryland State Bar Association. These Guidelines are not the law, but they contain the best practices for conducting discovery and for resolving common problems that occur during discovery. You should follow the Guidelines.
Do not ignore discovery requests!
- The Maryland Rules require that you respond and work with the opposing party to meet all discovery deadlines.
- Be timely in your response. If you cannot meet the deadlines for responding, request a reasonable extension and get the extension in writing.
- Supplement your discovery responses if "material" information changes.
- Courts do not like it when parties spring surprises on each other.
- Do not try to hold back information so that you can "surprise" the opposing party later.
- If there are witnesses you would like to call at trial, be sure to disclose their identity.
Circuit Court has more discovery types than District Court.
- You can request interrogatories, which are written questions from one party to another party in the lawsuit. Learn more about interrogatories.
- If you are in small claims court, discovery is not available.
- There are detailed rules about discovery practice and procedure in Circuit Court. You can find them in Title 2, Chapter 400 of the Maryland Rules.
- There are more discovery devices, or types, in circuit court.
- The most common devices are oral depositions, written interrogatories, and requests for production of documents.
- Other less frequently used devices are written depositions, requests to enter land or property, requests for mental or physical examinations, and requests for admissions.
Read the Rule: Md. Rule 2-401(a)
Some courts will issue a scheduling order with the deadlines. In other jurisdictions, the court will ask the parties to agree to deadlines for "designating" expert witnesses, for completing the depositions of witnesses, and for concluding discovery. You may have noticed that the discovery rules include details about dates and deadlines. You should communicate with your opponent to resolve any problems meeting deadlines, but you may not operate in a way that causes a delay to any other party's discovery. If you need more time to answer discovery, you may ask the opposing party for an "extension." Be sure to get opposing party’s agreement to extensions in writing. The Maryland Rules encourage the parties to work together to schedule and complete discovery.
Read the Rule: Md. Rule 2-401(c)
It is important to understand what information is "discoverable." If information is "discoverable," your opponent must share it with you if you ask for it in the proper way. Similarly, if information is "discoverable" and your opponent asks you for it, you must disclose the information. The Maryland Rules encourage broad discovery. Generally, information that is "not privileged" and "relevant to the subject matter involved in the action" is discoverable. Information is still “discoverable” even if it is “already known or otherwise obtainable” by the other party, or if it is information that may be inadmissible at the trial itself, as long as the information being asked for is “reasonably calculated” to show admissible evidence.
Read the Rule: Md. Rule 2-402(a)
Information may be "privileged" – and not discoverable – under some circumstances. Volumes of books have been written about the many types of privileges. The most commonly-asserted ones are the attorney-client privilege and the work-product doctrine. The attorney-client privilege protects communications between a party and her attorney. The work-product doctrine protects the mental impressions of counsel and work prepared in anticipation of litigation. If you would like to invoke these privileges, make sure you have a solid basis for doing so because the party asserting the privilege bears the burden of proving the existence of the privilege. Most information, however, will not be privileged. Information is "relevant" if it will help you prove your case or if it will help you defend against the lawsuit against you. Almost all information will be relevant.
All types of information may be discoverable, including documents (e.g., contracts, deeds, photographs), electronically-stored information (e.g., emails, word processing documents, spreadsheets, accounting books), tangible items (e.g., shoes and clothes worn in a slip-and-fall case, the automobile involved in a car accident), and knowledgeable persons (e.g., witnesses to accidents).
Read the Rule: Md. Rule 2-402(a)