Tools of Discovery

To collect information from opposing parties, the following discovery tools are available to all parties involved in active civil litigation:

  • Oral Depositions — Under N.C.R.C.P. 27 and 30, any party may demand the verbal testimony of other parties and witnesses who have information relating to the cause of action. A deposition is simply a question-and-answer session conducted by the party’s attorneys. The testimony is provided under oath and subject to legal penalties of perjury. A court reporter will be present to transcribe the verbal testimony for later use as substantive trial evidence or to impeach inconsistent testimony provided by the same witness during the trial.
  • Written Depositions — Written depositions are allowed under the North Carolina Civil Practice Act. However, these are very rare and typically ill advised. In some cases, a telephone deposition may be set up, or with recent technology, a video deposition may also be secured by consent or court order. The taking of written depositions is governed by N.C.R.C.P. 31.
  • Interrogatories to Parties — The limits and scope of interrogatories are governed by N.C.R.C.P. 33. Interrogatories are written questions that must be answered honestly and under oath by other parties involved in the lawsuit. This is the most common discovery tool. One party may serve any other party with written questions to be answered under oath within thirty days. By agreement, the parties can extend the time to answer. If the party served with interrogatories is a corporation, business, association, or government agency, answers must be provided by any officer or agent designated by that party. If a party objects to questions being asked, the objections must be served on the interrogator along with the reasons for objection. If the deponent refuses to answer an interrogatory or objects to a question, the proponent of the question may file a motion to compel with the court seeking an order compelling an answer. In North Carolina, the requesting party may not serve more than fifty interrogatories, including subparts, unless the court grants leave or the other party agrees.
  • Request for Production of Documents — If you seek insurance policies, medical records, or other documentary evidence, this discovery tool accomplishes your objective. A party may serve on any other party a request to produce and permit inspecting and copying, photographing, testing, and sampling of documents, papers, books, objects, or tangible things or demand entry onto land for the purpose of inspecting, surveying, or testing (N.C.R.C.P. 34). These requests may be served on the plaintiff after the commencement of the lawsuit and on any other party after the complaint is served. A party served with such a request must serve a written response within thirty days (forty-five days after service of complaint for the defendant). The response shall either agree to furnish the material or object to the request with specific reasoning. If the response is an objection or refusal to comply, the party submitting the request may move for an order commanding production of the requested documents.
  • Physical and Mental Examination — While this discovery tool is rarely used, the defendant can demand that the plaintiff submit to an “independent medical examination” (typically referred to as an IME). Once suit is filed, the victim can be forced to attend a medical examination with a doctor chosen by the defense. Under N.C.R.C.P. 35, when a mental or physical condition of a party is in controversy, the court, for good cause shown, may order that a party submit to a mental or physical examination by a physician chosen and employed by another party. This examination right applies to defendants as well as plaintiffs. While the rule calls for a court order, parties are encouraged to allow an IME by agreement.
  • Request for Admissions — This discovery tool allows the parties to refine the facts in dispute and thereby streamline the number of issues to be decided by a jury. Pursuant to N.C.R.C.P. 36, a party may serve any other party with a written request for the admission of the truth of a certain matter, of the application of law to facts, or of the genuineness of documents. Admissions are deemed made unless, within thirty days, the answering party serves a denial, an objection to the propriety of the request (e.g., privileged or irrelevant), or an identification of reasons why he or she cannot admit or deny. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he or she states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him or her to admit or deny the asserted fact. Aggressive attorneys will use request for admission to nail down the most compelling which confirm legal liability or enhance the value of damage claims.
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