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Discovery is a set of procedures used to gather evidence and information in a court case. They are usually done outside the courtroom, before trial.

What's Discovery? How's it used in Real Estate Cases?

Since we covered going to court last time, it may be useful to have a quick overview of a court process known as: "Discovery".

Discovery is a set of procedures used to gather evidence and information in a court case. They are usually done outside the courtroom, before trial. There are different kinds of Discovery. Some of the most common: 1) Interrogatories; 2) Document Requests / Subpoenas; 3) Requests for Admissions; 4) Depositions.

Quite generally, Interrogatories are written questions which must be answered in writing under oath. Document Requests, as the name implies, requires the production of documents, records, files and other tangible things such as computer hard drives, discs, etc. Document Requests are used to obtain documents from parties in the case. When documents are in the possession of another person or company (not a party to the case) documents are gathered using the Subpoena. Subpoenas are powerful discovery tools. Sometimes a document is found (say at a title company or a real estate company) which can dramatically alter the outcome of the case. Lawyers refer to these as "smoking gun" documents. Requests for Admissions ask the party to admit, deny or state that they lack information to admit or deny certain statements of fact or to admit or deny the genuineness of certain documents. These are useful in document intensive cases or where many facts should not be reasonably disputed. Depositions are very important discovery tools. A Deposition may be of a party or non-party to a case. If it is a Deposition of a party, they are compelled to appear for deposition on written notice. If it's a Deposition of a non-party, they must be served a Subpoena to compel them to appear. In a Deposition, a witness is to appear before a court reporter to answer questions (verbally) under oath in a live setting. The Deposition may be videotaped. The Deposition offers the attorney an opportunity to ask questions and receive real-time answers from a witness. The Deposition, as well as other Discovery, may be used as evidence in court.

Often, lawyers talk about creating a "discovery plan". A discovery plan is used to create a series of discovery procedures designed to develop evidence most favorable to the client's cause. For example, some attorneys prefer to use Interrogatories and Document Requests at the out-set to get a handle on the claims, defenses and the state of available evidence. Secondly, they may wish to follow-up with Depositions of important witnesses in order to nail down the pros and cons of available evidence. Depositions often help in settlement discussions, trial preparations, trial, or in disposing of cases by way of summary judgment.

If Discovery is not attended to in the proper time frame, a Motion to Compel may be filed. A motion to compel typically asks the court to order the errant party to respond to Discovery. In ruling on a Motion to Compel, the court may impose "sanctions" or a monetary fine or other penalties.Discovery is important in real estate cases. Often records are sought from title companies, escrow holders, real estate brokers, inspection companies and the like. A Discovery plan is useful to successful preparation of real estate cases and other types of cases as well. More on Discovery and court processes next time.

David M. Trapani is a licensed attorney in California and has offices in El Dorado Hills and San Jose, California. He graduated from Santa Clara University Law School in 1987. He can be contacted at (916) 939-2294 or at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . This article is for general information only. It is not a substitute for legal advice for your particular situation and cannot be relied upon as a substitute for consultation with an attorney regarding your specific facts and no attorney client relationship is created hereby.

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We understand the ins and outs of real estate law, construction law, foreclosure law and personal injury law.

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