Fact Checked

What Is a Motion for Discovery?

Alexis W.
Alexis W.

A motion for discovery is a legal request to the court in a civil trial. The request asks the court to mandate that the opposing council and party turn over a given piece of material or information. It occurs during the pre-trial process in which each party prepares his or her case to present to the judge.

In the United States, when civil lawsuits are filed, each party is entitled to request certain evidence from the other side. This rule is in place because courts believe that often the person best capable of providing the evidence is the one being sued. For example, if an individual sues a company for fraud, it is most likely that the company will have documents that show the fraud occurred; as such, the plaintiff should be entitled access to those documents so he can prove the fraud he says exists does in fact exist.

Parties can request their opponents to provide information or evidence.
Parties can request their opponents to provide information or evidence.

As such, each party can file a discovery request of the opposing side. These requests must be tailored to the case at hand. In other words, any requests the party makes of the opposing side for information must be because he believes the request is likely to turn over something that can help him prove his case. When he files a motion for discovery requesting the court to compel the opposing side to turn over the information, he generally must specify what he is hoping to find within the documents or evidence and why he believes that evidence will be found.

A motion for discovery is a legal request to the court in a civil trial.
A motion for discovery is a legal request to the court in a civil trial.

A motion for discovery must also be reasonable. This means it must be narrowly tailored to the case and cannot be cost prohibitive. A plaintiff trying to prove fraud, for example, could request bank statements from a company during the period in which the alleged fraud occurred. He could not, however, request every financial document or email the company ever sent, as producing such information would likely be very costly for the company and would be unreasonable.

When a party makes a motion for discovery, the judge will consider the motion in light of the reasonableness and in light of the other party's opposing motions or requests, if any. Certain exceptions to discovery do exist, however. For example, privileged communication between clients and attorneys is not discoverable, and any motion or request for discovery of such information will generally be denied by a judge.

Why A Motion for Discovery Is Important for Your Case

The discovery process can help you build a stronger case. If you’re the defendant, it can also help you know what arguments the plaintiff is likely to make. That way, you can take steps to prepare counterarguments or gather additional evidence to defend yourself. Filing a motion for discovery can provide many benefits:

  • Documents and other evidence to prove your case
  • A clearer understanding of the facts of the case
  • Witness testimony to back up your arguments
  • A good estimation of the other party’s case

After seeing the evidence in your favor or against you, it’s easier to decide on your next steps. If you find strong evidence that supports your case, you may decide to move forward with a trial. If you see that the odds are stacked against you, you may decide to seek a settlement instead, saving time and money on court costs.

When Do You Need To Use a Motion for Discovery?

It’s not always necessary to use a motion for discovery when preparing for a trial. If the requested evidence is provided by the opposing side without problems, there’s no need for a judge to get involved. In many states, the discovery process legally requires both the prosecution and the defense to share relevant evidence, so court orders to obtain the evidence may not be needed.

If the other party’s law team or business refuses to hand over relevant evidence or provide testimony, then it’s necessary to involve a judge in the discovery process. A motion for discovery is a court document that orders a person, business or law firm to turn over the required documents or evidence. This type of motion can also compel witnesses to testify.

How To Write a Motion for Discovery

Different motion for discovery forms are used in every state. It’s wise to consult with a lawyer before writing a motion for discovery to ensure it covers local laws and meets court requirements. Here are some general things you need to provide:

  • Your contact information: Provide your full name, address, phone number and email. You're the plaintiff if you’re filing the lawsuit or the defendant if someone is suing you.
  • Other party’s contact information: Fill in the name, mailing address, phone number and email address of the opposing party.
  • Situation leading to the motion to discovery: Explain in general terms what your case is about. This helps show the link to the evidence being requested. An example would be “victim of car accident that caused traumatic injuries,” for a personal injury case.
  • List of items, evidence or information you’re seeking: Be specific when mentioning what evidence or testimony you require for your case. This evidence can include narrow groups of documents, such as all medical records related to a car accident in a certain range of time.
  • Reason(s) you need the evidence: Show the connection between your case and the documents you're requesting. For example, the documents may be required to evaluate the truthfulness of injury claims.
  • Reason(s) you believe the other party has the evidence: Explain why it’s reasonable to expect that the other person or business has the documents or can provide the testimony you want.
  • Justification for your motion: Tell the judge why you were forced to seek a court order. Say if the other person has refused to turn over the evidence and why their excuses aren’t valid.

Usually, the last step is to sign and date the document. The motion of discovery generally contains an oath, so make sure all the statements you make are truthful before signing.

How Do I File a Motion for Discovery?

There are different rules and processes for filing motions in each state. In fact, counties and even individual judges may have unique rules you must follow. These rules are important because they can limit the amount of time you have for filing or set additional requirements for filing.

For example, sometimes motions for discovery must be filed jointly with the other party. It’s a good idea to check with a local law professional to avoid making any mistakes during this process.

Does a Motion for Discovery Require a Plea?

The timing of court trials can vary in state and federal cases, and it also depends on whether the trial is civil or criminal. In some cases, the prosecution isn’t legally required to turn over all evidence until just 10 days before the trial date.

In criminal proceedings, the plea is usually entered early, at the initial arraignment hearing. In any event, plea bargaining is generally possible even after a motion for discovery is filed because many prosecutors prefer to avoid the hassle of a trial.

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Discussion Comments


Before I grew up and got a real job, I was an attorney (I guess that makes me a recovering attorney these days -- kind of like an alcoholic in that you can never quite live it down). Anyway, I couldn't help but chuckle about the requirement that motions of discovery be "reasonable" because I saw a lot of very unreasonable requests filed.

If a plaintiff is suing a corporation with almost unlimited amounts of money at hand, it's a common practice for the defense lawyers to file motions asking for ridiculous amounts of documents as a way to harass and bully the opposition. It's a sleazy tactic which, sadly, is very effective.

Some reform in this area is desperately needed.

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    • Parties can request their opponents to provide information or evidence.
      By: Corgarashu
      Parties can request their opponents to provide information or evidence.
    • A motion for discovery is a legal request to the court in a civil trial.
      By: Andy Dean
      A motion for discovery is a legal request to the court in a civil trial.