What is Discovery?

In a holdover proceeding, the landlord’s attorney often makes a motion for discovery. Discovery refers to documents and testimony that an attorney wants to get from an opponent before trial.

Roughly, a motion for discovery seeks two things: a tenant’s documents, and a deposition. In a deposition, a lawyer calls you to her office, asks you questions, and has a court stenographer record your answers.

Tenants frequently oppose discovery motions. If they cannot defeat the motions, they often succeed in limiting their scope. The landlord’s attorney may be requesting documents that are irrelevant, confidential or privileged, and a judge may disallow such demands.

Tenants often make the mistake of having a knee-jerk reaction against discovery. "My landlord wants it – it must be bad!" Other people view the demand for personal records as an invasion of privacy. Tenants can instead use the discovery process as an opportunity to attack the landlord's case by producing pounds of documents in support of their defense.

If you fail to produce evidence in discovery, you may be prevented from using that evidence in your own defense at trial.