Discovery

The formal pre-trial process through which parties exchange information, documents, and witness testimony relevant to the lawsuit.

Discovery in Personal Injury Cases

Discovery is the investigative backbone of personal injury litigation — it is how parties gather the evidence they need to prove or defend against the claims before trial.

California personal injury cases employ four primary discovery tools under the Civil Discovery Act (CCP §§ 2016.010 et seq.):

Depositions. Sworn out-of-court testimony taken before a court reporter. Both the plaintiff and defendant are typically deposed. Expert witnesses are also deposed. Depositions allow attorneys to lock in testimony, evaluate credibility, and explore all aspects of the case. Deposition transcripts can be used at trial to impeach witnesses whose trial testimony differs from their prior sworn statements.

Interrogatories. Written questions that must be answered in writing under oath. California limits parties to 35 specially prepared interrogatories (CCP § 2030.030), though additional form interrogatories are available for standard topics including personal injury, insurance, and employment. Interrogatories are used to identify witnesses, gather basic facts, and pin down the opposing party's contentions.

Requests for Production of Documents. Written demands for documents, electronically stored information (ESI), and other tangible things. In personal injury cases, these requests typically seek medical records, insurance policies, accident reports, maintenance records, and communications relevant to the incident.

Requests for Admission. Written demands that the opposing party admit or deny specific factual propositions. Admitted facts need not be proved at trial. If a party unreasonably denies a request and the requesting party later proves the fact at trial, sanctions including attorney fees can be imposed (CCP § 2033.420).

Independent Medical Examinations. The defense has the right to have a physician of its choosing examine the plaintiff (CCP § 2032.020). See the IME glossary entry for details.

Subpoenas. Third-party discovery through subpoenas duces tecum compels non-parties (hospitals, employers, phone companies) to produce records.

How Discovery Works in Practice

A typical discovery timeline in a California personal injury case begins approximately 30–60 days after service of the complaint, when the defendant responds to the lawsuit. Parties serve written discovery (interrogatories and document requests) early in the litigation. Responses are due within 30 days.

Depositions typically occur six to twelve months into the litigation, after written discovery is largely complete. The plaintiff is usually deposed first; the defendant's representative (or the individual defendant) is then deposed. Expert witnesses are designated and deposed closer to trial.

Discovery disputes are common. If a party objects to a request or refuses to produce documents, the requesting party may file a motion to compel with the court. Courts can impose sanctions — including monetary sanctions, issue sanctions (deeming disputed facts established), evidence sanctions (excluding evidence), and terminating sanctions (dismissal or default) — for repeated discovery abuse.

Medical records are central to personal injury discovery. The defense will request authorizations for all medical records, not just treatment related to the accident. Pre-existing conditions, prior injuries, and treatment history all become relevant when the defense argues that the plaintiff's injuries pre-existed the accident or were aggravated rather than caused by it.

State-by-State Variations

Federal courts and all state court systems have discovery procedures, but the specifics vary considerably:

Federal courts use the Federal Rules of Civil Procedure (FRCP Rules 26–37), which differ from California's rules in several important ways. Federal courts require initial mandatory disclosures (FRCP 26(a)) without waiting for requests — parties must automatically disclose witnesses and documents they may use at trial. California has no equivalent mandatory disclosure requirement.

Interrogatory limits also vary. California limits parties to 35 special interrogatories per side. Federal courts and some states allow 25 (FRCP 33) or have no express numerical limit. Some states are far more restrictive.

Electronic discovery (e-discovery) rules vary significantly. California courts apply general discovery principles to ESI. Large cases often require detailed e-discovery negotiations about data preservation, search terms, and production format.

Discovery in medical malpractice cases in some states is subject to additional restrictions — for example, requirements to submit the case to a medical review panel before commencing discovery on the merits.

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