A party not receiving responses or believing the responses received to be incomplete may file a motion to compel , seeking an order of court to get the information. Likewise, a party seeking protection from another party’s request, such as a request for privileged information, may file a motion for a protective order . Discovery disputes are common and may become quite contentious. Unfortunately for today’s inquiring reporters, written discovery requests and responses are not filed with the clerk of the court, so they cannot be found in the court file. The only paper filed is a notice of service , which certifies the various documents were served, that is, mailed or hand- delivered to the opposing party. To get the information they seek, reporters will need to contact the parties or their attorneys and request copies. Non-Written Discovery The primary form non-written discovery, usually available only in the Circuit Court, is the deposition . After the complaint is filed and answered by the defendant, the scheduling of depositions can begin. This allows attorneys for all sides to question a party, expert or other witness face-to-face in order to gather all information needed for the deposing party to effectively present a case and sometimes just to take stock of the other party and the witnesses. The deposition is under oath and a court reporter is present to transcribe all testimony. It is usually conducted in a lawyer’s office and is not public, though portions of a transcript could be used in a party’s motion or response to a motion. A deposition transcript is not filed with the clerk. Under certain circumstances, the deposition can be taken on video and audio record or via telephone and sometimes in response to written questions submitted in advance.
Throughout the preparation of a case, less formal modes of discovery also take place, such as talking to witnesses, photographing the scene, consulting experts on important issues in the case, researching the claim history of a particular company or individual or conducting surveillance.
Motions A motion is a written paper submitted by a party to the court for a ruling on a particular request. Motions can take place in many forms. Before a complaint is even answered by a defendant, the defendant must raise some issues via a motion to dismiss, if they are to be raised at all. Otherwise, they are considered waived. Other issues may be raised by a motion at any time. Often, the issues are technical in nature and relate to whether the lawsuit was served in the proper court or county, was properly served upon the defendant or was served upon the proper defendant.
In Circuit Court, issues normally raised by pre-trial motion include the statute of limitations, lack of jurisdiction over the subject matter, failure to state a claim upon which relief can be granted, failure to join a party, and governmental immunity. One of the most valuable tools available to
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