Discovery in Civil Cases
The process parties use to find out about the strengths and weaknesses of the other side's case is called discovery. Each side may send written requests to each other asking for specific information which may be relevant to the case.
Discovery requests are not filed with the court, but you must file a Certificate of Service saying a request, or response to a request, has been sent to the other side. You can find the Certificate of Service form in the Forms section at the bottom of this web page. The court is only involved in the discovery process if a party objects to a request, or if a party refuses to comply with a request.
The discovery process can be complicated. Consider talking to an attorney for help. You can find information about the ways to get the help of an attorney on the Finding Legal Help web page.
Parties may discover any matter which:
- Is not privileged (protected or confidential).
- Is relevant (connected) to the claim or defense of any party.
- Is proportional to the needs of the case.
Vermont Rule of Civil Procedure 26(b) (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
When party (or their attorney, if they have an attorney) signs a discovery request or response, their signature means the request or response:
- is consistent with Vermont Rules of Civil Procedure,
- is not made to harass, to cause unnecessary delay, to needlessly increase the cost of litigation, or for any other improper reason; and
- is not unreasonable, unduly burdensome, or unduly expensive.
Vermont Rule of Civil Procedure 26(g) (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Interrogatories
Interrogatories are written questions answered in writing under oath. A party must answer the questions and return the sworn response to the other party within:
- 30 days of being served with the request if it is served any time after complaint is filed.
- 42 days of being served with the request if it is served at the same time as the summons and complaint.
See Vermont Rule of Civil Procedure 33 for more information. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Request for production of documents
This is a written request for the other party to provide copies of documents or electronic records, or access to documents or electronic records.
A party must comply with the request within:
- 30 days of being served with the request if it is served any time after complaint is filed.
- 42 days of being served with the request if it is served at the same time as the summons and complaint.
See Vermont Rule of Civil Procedure 34 for more information. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Depositions
Depositions are oral questions answered under oath. Depositions are recorded by audio or video, or transcribed by a court reporter. During a deposition, a party may ask another party or a witness questions.
The party asking for the deposition must give all other parties to the case and the person being deposed written notice about the date, time and location of the deposition. The notice must be made at least 14 days before the date of the deposition. Depositions do not take place at the courthouse.
See Vermont Rule of Civil Procedure 30 for additional requirements. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Medical examinations
If the mental or physical condition of a party is in controversy, the court may order the party to submit to a physical or mental examination by a licensed or certified professional. The party asking for a medical examination must do so in writing, and show "good cause" (a good reason) for ordering the exam.
The party requesting the examination must share the examiner's detailed report with the other party.
See Vermont Rule of Civil Procedure 35 for more information. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Request for admission
This is a written request asking the other party to admit or deny specific documents are genuine, or specific statements are true.
A party must answer the request within:
- 30 days of being served with the request if it is served any time after complaint is filed.
- 42 days of being served with the request if it is served at the same time as the summons and complaint.
If a party doesn't respond by the deadline, the documents will be considered genuine, and the statements will be considered to be true.
See Vermont Rule of Civil Procedure 36 for more information. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)
Subpoena
A subpoena is a document a party in a lawsuit can use to require a person who is not a party to the case to:
- testify at a trial, hearing, or deposition to answer questions under oath
- allow inspection of a place
- produce or bring documents or other items to a hearing
- copy documents or electronically stored information
A party may use a subpoena in combination with one of the discovery methods described above. See the Subpoenas web page for more information about the subpoena process.
Objecting
A party may object to a discovery request. Common reasons for objecting to a discovery request include the request is not relevant to the case, the request is too vague, or the request is too burdensome.
The objection must be made in writing, and must be sent to the other party by the deadline for responding. Generally speaking a party must make their written objection within:
- 30 days of being served with the request if it is served any time after complaint is filed.
- 42 days of being served with the request if it is served at the same time as the summons and complaint.
An objection can also be made orally during a deposition.
If a party has objected to a discovery request, the parties must make a good faith effort to resolve their disputes before filing anything with the court about the dispute. The parties (or their attorneys, if they have attorneys) must talk in person or by phone or video to try to resolve or narrow the issues.
Compelling
If the parties are unable to settle their disagreement, the person seeking the information can file a motion to compel, asking the court to decide whether the information must be produced. They must file a statement confirming they have talked with the other side and were unable to come to an agreement.
If the court orders a party to provide the information and they do not do so, they can be sanctioned by the court. Sanctions may include having to pay the other side’s lawyer’s fees, not being able to use certain evidence at trial, or even losing the case.
See Vermont Rules of Civil Procedure 26(h) and 37 for more information about objecting to discovery and filing motions to compel. (choose Vermont Court Rules from the box at the right, then scroll down to Rules of Civil Procedure)