What is discovery?
If you are a party in a civil lawsuit, you have the right to discover what the other parties – and those outside the case – know about the events or transaction in the suit. You are also required to cooperate with the other side’s efforts to find out or “discover” what you know about the dispute. The idea is that our court system achieves best results when all of the relevant facts in a case are revealed. In addition, discovery prevents one side or the other from gaining an advantage by hiding evidence until trial.

NOTE: Remember that our system of justice may be set up as an “adversarial” system – where one side claims the other side did something wrong – but judges and the civil rules of procedure are part of a framework that tries to make the courtroom an even playing field that does not favor one side over the other. Although it might seem that one side’s clever case “strategy” or their ability to hire an attorney gives that side an advantage over the other side, all parties must follow the same rules of procedure, and they must meet the same deadlines.

No side should be favored over another. This is why judges and court staff cannot give legal advice to parties that are representing themselves, as this may give one side an advantage over the other.  Your discovery rights are contained in Civil Procedure 26 through 37. These rights and obligations include:

1. Document requests;
2. Interrogatories;
3. Depositions;
4. Requests for Admissions;
5. Subpoenas;
6. Motions to Compel; and
7. Protective order.

When the other party in the case or someone not involved in the lawsuit (called a third party) has evidence that you need to present your side of the case, the discovery rules help you get that evidence. This evidence might include documents, photographs or testimony. The following two example cases will help explain the different parts of discovery.

Example: Change of Custody Case

Carla and her husband Dante are divorced. They had one child, Nathan. The court awarded custody of Nathan to Carla and visitation rights to Dante. One year later, Carla is struggling with drug addiction and faces drug-related charges. Nathan is acting out at school and his grades have dropped. Dante wants to take custody of Nathan, but Carla refuses. Dante goes to court. He asks the court to appoint an attorney to help him, but the court decides that Dante is not poor enough to qualify (known as being “indigent”) and therefore refuses to appoint an attorney for him. Dante decides to represent himself in court.  Dante would also have the option of contacting the legal aid program in his area.

Example: Rent Collection

Jack lost his job and fell behind on his rent. Jack offered to paint several rooms in the rented house in exchange for two months of rent payments. The landlord agreed and had Jack sign a piece of paper that listed the rooms he would paint in exchange for rent. The landlord agreed to buy paint and supplies, but he only provided half of the paint. Jack paid $150 for brushes, supplies and the rest of the paint to finish the job. Jack did a nice job painting the rooms. At the end of two months, however, he still did not have a job and fell behind on the third month's rent. Several days after the rent was due, Jack received a complaint seeking to evict him and to recover three months of unpaid rent. Jack voluntarily vacated the house at the end of the third month. Even though Jack left the house in good condition, the landlord refused to return Jack’s security deposit and refused to reimburse Jack for the $150 in supplies. Jack decided to represent himself as a defendant in the rent collection case and filed a counterclaim for his security deposit and $150 in supplies.

What is probable cause?

A measure or degree of proof that is less than preponderance of the evidence, and is the lowest degree of proof normally used in a legal proceeding. Proof amounting to probable cause exists where there is good reason to believe, based on specific evidence, that a specific allegation or accusation is true. It is the degree of proof required to: 1) sustain an arrest; 2) bind over an accused to a grand jury following a preliminary hearing; 3) return an indictment; or 4) issue a search warrant.

This content was created by the Ohio State Bar Foundation's 2006 Fellows Class - Keys to the Courtroom Project.