Discovery 101

I am familiar with lawsuits, but what is "discovery"?

Many people generally understand that litigation usually arises from an individual's grievance with another person. These grievances may also arise between business entities. The substance of these types of grievances can range from personal injury, defamation, trademark infringement, property disputes and everything in between. The way that the legal profession is portrayed in entertainment media, gives the impression that all lawsuits are decided in the courtroom. But, what happens in the time between the filing of a lawsuit and a trial?

The vast majority of that time is spent by both sides of the dispute engaging in the discovery process. This post-filing but pretrial time period is commonly referred to as the discovery phase. Discovery is the formal process where the parties to a lawsuit both seek and provide relevant information. Each side is required to exchange broad categories of information that might not seem to be relevant to the dispute. This process shapes each side's strategies, reveals and identifies risks, and often has a huge impact on whether a party is emboldened to move forward, or alternatively more open to the idea of a negotiated settlement.

For anyone in the midst of, or considering, litigation, it is important to understand that discovery is not a secondary concern. It is often the most time-consuming, expensive, and strategically significant part of a lawsuit. A party may have a strong legal claim on paper, but discovery reveals whether such a claim can actually be proven.

At its core, the discovery process helps to prevent one party from unfairly surprising the other party at trial. Both sides are entitled to know what evidence the other side intends to rely on, which witnesses are expected to testify, and what facts support their claims or defenses. This exchange of information allows courts to resolve disputes based on the merits rather than ambush tactics.

What does discovery look like?

Discovery typically involves several tools, each serving a different purpose.

Typical written discovery is comprised of interrogatories and requests for production. Interrogatories are written questions that must be answered under oath. Requests for production require a party to produce documents, emails, contracts, text messages, financial records, and other tangible evidence. In modern litigation, electronically stored information often becomes the central focus, which can significantly increase cost and complexity if experts are needed to pull out information.

Discovery may also include requests for admission, which ask a party to admit or deny specific facts. These are often used to narrow issues and eliminate facts that are not genuinely in dispute.

Depositions are another key discovery tool. A deposition is sworn testimony taken outside of court with a court reporter present. Depositions allow attorneys to test a witness's credibility, lock in testimony, and evaluate how a witness may perform at trial. Typically, the deposition will take place at the office of one of the attorneys involved. In recent years, zoom and other video conferencing platforms have opened the door for depositions to take place remotely. This is far more convenient and reduces travel costs. What is revealed during a deposition often drives settlement discussions more than any written motion.

Discovery Strategy

Discovery is never only about gathering facts. It is also about identifying leverage.

Information obtained during discovery can strengthen a case, expose weaknesses, or reveal that a claim is more tenuous than originally thought. A document that rebuts a key allegation or deposition testimony that belies a prior asserted position can completely change the posture of a case.

Discovery also plays a major role in motion practice. Summary judgment motions, which ask the court to resolve a case without trial, are almost always built on the discovery record. If the evidence developed in discovery eliminates any questions of fact regarding a specific claim, a party may be able to prevail on that specific claim before reaching a jury.

Just as importantly, discovery affects settlement value. Parties make settlement decisions based on what they know, not what they hope to prove later. As discovery clarifies the strengths and weaknesses on both sides, the range of reasonable outcomes narrows.

Cost and Risk of Discovery

One of the most common surprises for clients is how expensive discovery can be. Reviewing documents, responding to discovery requests, preparing witnesses, and taking depositions requires significant attorney time. Disputes over the scope of discovery can further increase the cost.

Discovery also carries risk. Statements made under oath can be used at trial. Documents produced can only be clawed back in certain circumstances. Click HERE for more details. A party that is careless, inconsistent, or unprepared during discovery can unintentionally damage its own case.

For these reasons, discovery strategy should be deliberate from the start. Knowing what information matters, what positions are defensible, and where compromises make sense can prevent unnecessary expense and avoidable harm.

Full Picture

Discovery is not just a procedural requirement. It is the engine that drives litigation forward. A case with strong facts supported by clear discovery is more likely to resolve favorably than one built on assumptions or incomplete information.

Understanding the discovery process helps set realistic expectations. Litigation is not just about being right. It is about being able to prove you are right, efficiently and credibly, using evidence that will withstand scrutiny.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.