Discovery is material relevant to any party’s claim or defense- also known as evidence. This can include text messages, photos, security footage, documents, depositions, etc. All materials that can be reasonably accessed or reasonably calculated to lead to the discovery of evidence are allowed to be admitted as discovery.


            Either party is welcome to request discovery throughout the course of an investigation. The party may move for a court order if the request for materials is denied by the source. However, a judge may put limitations on the frequency or extent of discovery if the court feels the material is unreasonably duplicative or cumulative. The court may also require that discovery be obtained by some other source that is more convenient, less burdensome, or less expensive (MCA 26 (b)(2)(C)).


            When preparing for trial, all discovery needs to be exchanged beforehand, to ensure a fair hearing. Both parties have a right to all evidence that will be presented in court before the trial takes place. New evidence presented during the trial may be thrown out by the court.


            If for some reason a person does not wish for certain documents or discovery to appear in court, they may request a protective order from the court in which the action is pending. To do so, they must prove that they have attempted to resolve the dispute with the other party without court intervention and provide substantial reasoning as to why the material should be excluded from the discovery. The court may enact this protective order by specifying certain terms that can or cannot be included, mandating a certain timeframe in which parties can acquire discovery, requiring certain documents to be sealed, forbidding inquiry into certain discoveries, etc. On the contrary, the court may also demand that specific documentation or evidence be released if the protective order is denied, or if other discoveries indicate that further inquiry is essential to the investigation.


            There are a few instances in which privacy must be honored and may not be included in the discovery. These are conversations between a client and their attorney, patient and doctor conversations protected by HIPAA, private interactions between spouses, and religious advice given to members. Other matters of privacy are determined by the state but often include topics such as sexuality, family relationships, health, etc.


            If you have questions about the discovery process or evidence pertaining to your case, call one of our experienced attorneys at Ryan & Miller at (406) 542-2233.