Toxic Torts

The Discovery Process in Asbestos Lawsuits

When people think about lawsuits, they usually think about trials and other courtroom drama. But that’s not where most of the work of a case happens, especially when it comes to asbestos-mesothelioma litigation.

Between the time an asbestos lawsuit is filed and the day it gets resolved (whether through settlement or trial), both sides gather information they plan to use to prove their side of the case. This is known as the "discovery phase" of the lawsuit. Plaintiffs are involved in some aspects of discovery, but much of the process is handled by the attorneys. Let's look at the different discovery tools in an asbestos case.

General Interrogatories

Many jurisdictions have a set of standard written questions (“interrogatories”) which all asbestos plaintiffs are required to answer at the outset of the case. The idea is to provide the defendants with basic information. These questions usually cover background information about the plaintiff, including medical history, work history, coworker and product identification, and financial loss.

Your attorney will prepare the answers to these questions based on information you have provided in the initial interview and any questionnaires your attorney asked you to fill out. If information is incomplete, someone from your attorney’s office will call you to get more answers. Your asbestos attorney needs this information too, in order to be your most effective advocate. It's important to be truthful and accurate in your responses, as you are giving them under oath.

Your Deposition

Another key step in discovery is your deposition. Without sworn testimony from you, the case often cannot proceed very far. At your deposition, the defendants' attorneys ask you questions, and you provide the answers under oath. The questions are often similar to the standard interrogatories but are designed to elicit more detail, as well as any information which has changed. Other questions will relate to your knowledge of particular products that contained asbestos.

An important part of a deposition in an asbestos case is identification of other witnesses, including coworkers and the doctor who diagnosed your asbestos disease. Defendants will use questions about your medical history to decide what medical records to order, questions about your work history to evaluate the extent of their liability, and questions about your illness and your economic circumstances to get a picture of what the damages might be.

You will also be asked to produce all relevant documents, including work calendars, receipts for prescriptions and over-the-counter drugs, W-2 forms, and photographs of worksites or of yourself before your illness. Your medical records will usually be obtained through release authorizations, which you will sign.

Learn more: What Will Happen at My Deposition in an Asbestos Case?

Special Interrogatories (or "Written Discovery")

Written discovery occurs when one party asks (“propounds”) questions to the other side. It will often begin after the deposition, when defendants have had a chance to see what your case against each of them looks like. Your attorney might use the phrase "discovery" to refer to all written discovery. Generally in asbestos cases the defendants are the ones asking, and the plaintiff provides an answer.

The defendants will be trying to find the weaknesses in your case, and your attorney will need to decide what information to provide. Facts will need to be disclosed even if they are unfavorable, but your attorney will interpret the defendant’s questions in the way most favorable to you.

A typical question is “State all facts which support your assertion that Defendant is responsible for your asbestos-related disease.” It will be followed by questions about specific jobsites, details of the work performed, how you identified the defendant’s product(s), which product(s) you identified, and so on.

Your attorney will prepare the answers to these special interrogatories for you, based on information in the case file and upon investigation the attorney does, such as calling coworkers. Your attorney might ask you to try to remember certain jobs in more detail. If the case has many defendants, there can be a substantial amount of written discovery, and you may be on the phone frequently with your attorney.

After the answers have been prepared, a copy of the questions and answers will be sent to you. You will need to sign a statement under penalty of perjury that the responses are true and correct. If they are not, let your attorney know what changes need to be made.

Written discovery will also include a request for the production of documents. Many of these documents will have already been produced at your deposition (so they won't need to be produced again) but your attorney might ask you to take a last look for anything you couldn't find earlier. Be prepared for the defendants to ask for documents they know you are unlikely to have. This is a standard litigation strategy, and nothing to be concerned about.

Objections to Discovery

In written discovery, the defendants’ attorneys will try to find out everything they possibly can, and they will almost certainly ask questions that are irrelevant or repetitive. Your attorney will object to those questions (and to others as well). The objections may be based on the language of the question, the information being sought, or procedural issues. Many responses will consist of a series of objections followed by a statement to the effect that "Investigation and discovery are continuing."

Written discovery can seem overwhelming, especially when the responses include lengthy objections or repeat the same information over and over. It's the stage in the case where the parties first significantly butt heads, and a lot of legal maneuvering is going on. Your responsibility as a client is to provide as many facts as possible to your attorney and not to worry about the inevitable objections to questions or disputes about the answers. This is one of the reasons you have hired an attorney instead of trying to do it yourself.

Learn more about the potential next stage of an asbestos case: What If My Asbestos Case Goes to Trial?

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