Discovery is the court-authorized, formal process for getting information from the other party before an evidentiary hearing (the trial-like hearing in which the parties give evidence).
In most cases, the parties communicate informally to exchange information. Also, OAH rules require parties to share documents they want to use as evidence. So, a formal process of exchanging information usually is not needed in an OAH hearing, and discovery generally is not permitted. But if you have already tried to get information or documents from the other party and they refuse to give you information that you think they are required to give, you can request that the judge allow discovery.
NOTE: Public Sector Worker’s Compensation (PSWC) cases are different. If you have a PSWC case, see OAH Rule 2954 for types of discovery allowed by the rules. The OAH Rules are on the Rules & Laws page.
How does discovery work?
There are several different formal methods for getting information or documents from an opposing party, including:
- Interrogatories: a formal list of written questions that you send to the other party and that the party must answer in writing. The judge will usually limit the number of questions that are allowed from each side.
- Requests for Admission: a formal list of written statements that you send to the other party. The other party must admit or deny each statement or explain why the statement cannot be admitted or denied. Any admitted statement is considered undisputed fact for purposes of the hearing.
- Subpoena to Produce Documents or to Permit Inspection: a court order requiring the other party to provide documents, electronic information, or other physical items, or to permit inspection of premises, before an evidentiary hearing. A subpoena can also be used to require a person who is not a party to the case to come to a hearing to testify as a witness or to produce documents or permit inspection. Visit the Subpoena Request page for more information about these types of subpoenas.
- Deposition: a witness’s sworn testimony that is given and recorded out of court. The person being questioned and giving testimony (the “deponent”) may be an opposing party or a party’s witness. In most OAH cases, depositions are not needed or allowed. An evidentiary hearing gives each side the opportunity to question the other side’s witnesses under oath before the judge, so there is often no need for out-of-court testimony. Plus, depositions require time and expense, as the process must include both parties and their representatives (if any), an official who can administer oaths, and a method for recording and creating a transcript that can be used during the evidentiary hearing. Depositions are most frequently needed in an OAH case when the case involves highly technical issues, requiring expert witnesses who may be unavailable to attend a hearing or whose extensive testimony may need to be questioned before the evidentiary hearing. Otherwise, depositions are generally not allowed. But you can request one if you think it is necessary.
OAH Rule 2825 generally covers the rules of discovery in OAH hearings, including the deadline for requesting discovery and possible sanctions for a party’s failure to comply with authorized discovery. However, the OAH Rules do not have detailed requirements or procedures for different discovery methods. When the OAH Rules do not address a specific procedural issue, the OAH Rules allow OAH judges to look for guidance in the D.C. Superior Court Rules of Civil Procedure, which do cover discovery methods in more detail (specifically in Rules 30 through 37). Superior Court rules do not automatically apply to an OAH case, but they can be a helpful reference.
How do I ask a judge to allow discovery?
You must first try on your own to get the information you are seeking from the other party. If you are unsuccessful, you may then ask the judge to allow discovery.
If you are requesting a subpoena that requires an opposing party to produce documents or to permit inspection of premises, you must include with your request a proposed subpoena.
If the judge allows discovery, what do I do next?
The judge will usually send a written order explaining what types of discovery are allowed and setting limits and deadlines. It is then your responsibility to make the specific requests for information or documents to the other party. The OAH judge will explain what methods of discovery are allowed, but OAH does not facilitate the actual discovery process. You will need to type and send your own questions, statements, or instructions directly to the other party, depending on the method of discovery you are using, or serve a signed subpoena as required by OAH Rule 2824.
The judge will only get involved in the discovery process if the opposing party objects to a specific discovery request. In that case, the judge will determine whether the party must comply or not, based on the reason for the objection.
Also, for discovery that involves you sending written questions, statements, or a notice to the other party, the OAH Rules do not have any specific format requirements – the questions or statements just need to be in writing and must be detailed and clearly defined. OAH does not have standard forms for interrogatories, requests for admission, or deposition notices.
What do I do if the other party refuses to comply with an authorized discovery request?
An opposing party may have a valid reason for refusing a specific discovery request. In that case, the opposing party would need to put their objections in writing, and the judge would make a determination as to whether the objections are valid.
But if a party refuses to comply with a discovery request without a valid objection, the next step depends on the type of discovery request.
If a judge authorized a deposition, and a witness says they won’t come, you can then request a subpoena to require the witness to appear at the deposition. Complete and file a Request for a Subpoena form and include a proposed subpoena, using the Subpoena to Appear and Testify at a Deposition. See the Subpoena Request page for more information about subpoenas.
If an opposing party refuses to comply with any other type of discovery request, you can inform the judge in writing. You can explain the situation on a Blank Submission Form. In response, the judge may issue an order requiring the other party to explain why they have not complied. If the other party does not give a good reason, the judge may impose sanctions, including prohibiting the other party from offering certain evidence or ordering that specific facts are established.