Topics on this page
- What is Discovery?
- District Court v. Circuit Court
- Discovery Deadlines
- "Discoverable" Information
- Duty to Supplement Responses
What is Discovery?
"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).
- Interrogatories: You may learn about the identity of fact witnesses and expert witnesses and their knowledge by serving interrogatories to the opposing party. Interrogatories are written questions the other party must answer. Learn more about interrogatories.
- Request for Production: 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.
- Request for Admission: If you believe that there are facts that both you and your opponent agree on, you can serve your opponent with a request for admissions, and that statement will be considered true for all purposes of the trial.
- Depositions: You may decide that you would like to find out in detail what the opposing party and their witnesses know, and the opinions the opposing party’s experts hold. You may explore their opinions and knowledge through depositions, which are sworn statements that can be both oral and/or written.
During discovery, your opponent will also ask you questions and/or request documents, which you will have to answer through these same methods.
Maryland Discovery Guidelines - Read the Maryland Discovery Guidelines, prepared by the Maryland State Bar Association (MSBA). Though these guidelines are not the law, you should follow them. They outline best practices for conducting discovery and resolving common problems that can occur during the process.
Do not ignore discovery requests!
- The Maryland Rules require that you respond to 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 from the opposing party 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 identities.
District Court versus Circuit Court
Circuit Court has more discovery types than District Court.
District Court
- You can request interrogatories, which are written questions from one party to another party in the lawsuit.
- You can take another party’s deposition if you file a written stipulation in your court case.
- If you are in small claims court, discovery is not available.
Read the Rules: Md. Rule 3-401; 3-421; 3-701
Circuit Court
- 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 types in Circuit Court than in District Court.
- The most common types are oral depositions, written interrogatories, and requests for production of documents.
- Other, less frequently used types are written depositions, requests to enter and inspect land or property, requests for mental or physical examinations, and requests for admissions.
Read the Rule: Md. Rule 2-401
Discovery Deadlines
Some courts issue scheduling orders with deadlines; others ask parties to agree on deadlines for designating expert witnesses, completing depositions, and concluding discovery. While discovery rules specify dates and deadlines, you should communicate with your opponent to resolve deadline issues without operating in a way that causes delays to any other party’s discovery. If you need more time to answer discovery, you may ask the opposing party for an "extension." If they agree, be sure to get the opposing party’s agreement to extensions in writing. The Maryland Rules encourage cooperation between the parties to schedule and complete discovery.
Read the Rule: Md. Rule 2-401(c)
"Discoverable" Information
It is important to understand what information is "discoverable." If information is "discoverable," your opponent must share it upon proper request. Similarly, you must disclose discoverable evidence if asked. The Maryland Rules encourage broad discovery. Generally, information is discoverable if it is “not privileged” and “relevant to the subject matter involved in the action.” Information remains discoverable even if it is “already known or otherwise obtainable” by the other party, or if potentially inadmissible at trial, provided it is “reasonably calculated” to show admissible evidence.
Read the Rule: Md. Rule 2-402(a)
Information may be "privileged" and thus not discoverable under some circumstances. Common privileges include attorney-client privilege (protecting communications between a party and their attorney) and the work-product doctrine (protecting attorneys’ mental impressions and work prepared in anticipation of litigation).If you want to invoke these privileges, make sure you have a strong reason, because the person claiming it is responsible for proving that it applies. However, most information will not be privileged. Information is "relevant" if it helps prove your case or defend against the lawsuit; almost all information meets this standard. Consequently, nearly all information types are discoverable, including:
- Documents (contracts, deeds, photos)
- Electronically stored information (emails, spreadsheets, accounting books)
- Tangible items (clothing from an accident, vehicles)
- Knowledgeable persons (witnesses)
Read the Rule: Md. Rule 2-402(a)
Duty to Supplement Responses
In most cases, discovery is issued and received in the early stages of litigation, so you may not have all the answers or documents yet. You must still respond on time. If you later find new information that changes your answers, you must “supplement” your response promptly.
Read the Law: Md. Rule 2-401(e) (Circuit Court); Md. Rule 3-421(d) (District Court)
As a practical matter, parties generally supplement their discovery before the discovery deadline to give the other side time to ask follow-up questions. The opposing party does not have to ask you to supplement; you are under a continuing duty to do so. If you do not supplement material information promptly, the court may later preclude the information at trial, meaning you will not be permitted to use it as evidence.