Do I have to prepare a discovery plan?
A discovery plan is not required by any court rule, but it is a very good thing to do. By making a plan, you have a better chance of getting the evidence that you need in time for trial. Your plan should identify who has evidence, what kind of evidence they have, how you will obtain that evidence and when you will obtain it. Always keep in mind the deadlines in your lawsuit so that your plan helps you meet the court’s deadlines.

NOTE: The examples provided below are based on the hypothetical cases set out in the Introduction to Discovery.

A discovery plan should include:

1. A list of the evidence (documents, photographs and testimony) that you need to present your case.  This could include a criminal record, school records, testimony from teachers and earning records.
2. A list of the people or places that have the evidence.  A party may have his own earnings records, but he may need documents from the police department, a school or another party’s employer.
3. A timeline (calendar) for when to use discovery tools to obtain the evidence. In most cases, you should first write and send to the other party a request for production of documents and a set of questions that the other party must answer in writing and under oath. These questions are called interrogatories. Interrogatories and document requests are together described as "written discovery." The other party has 28 days to answer your written discovery request. Once they answer, you may want to depose the party, which means to ask additional questions under oath in a deposition about the evidence and the issues in the case. You should start working on discovery as soon as possible. However, since a party might fail to answer written discovery or cooperate in scheduling a deposition, you should give yourself at least twice as much time as you think you’ll need. This will give you time to prepare more written discovery questions or  file a motion to the court if the other side resists answering your questions.

How is evidence gathered?
You should start with any evidence that you already have in your own possession.  A party can gather the receipts for supplies that she bought.

• Next, gather evidence from people who will provide it voluntarily.  If a neighbor took pictures with a cell phone, you should get copies of the pictures.  The neighbor should provide a copy, if possible, and not delete the pictures from her phone until after the trial.  She should also be available to testify that she took those pictures to provide that they are the evidence that you claim they are.

If the party with the evidence will not provide that information voluntarily, then the discovery rules are available to help you get it.  For example, another party’s employer might not give you a copy of an earnings history voluntarily.  You can get those records using a subpoena.

Discovery tools include:

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

Ohio's Rules of Civil Procedure 26 through 37 control how you use these discovery tools. These rules do not favor one party over the other. For example, the other party to the lawsuit can demand that you disclose witnesses, what they will say and documents. Generally speaking, you must provide all relevant evidence properly requested. The same is true of your requests to the other side.

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