The United States is known for its particularly complex legal system, which is largely composed of multiple phases. Typically, the longest phase is the “discovery” phase. Discovery usually takes off right after the parties file their respective complaints and answers. Here is an overall primer on the discovery process – what it is and what it involves, why we have it, and some general considerations for deciding how involved it needs to be.
What is Discovery?
This is the formal process of exchanging information and documents between the parties. This process allows the parties to determine key evidence and witnesses for trial.
Why Do We Have Discovery?
In short, we have discovery to give the parties a chance to obtain the necessary evidence to (1) prepare for trial, and (2) evaluate and potentially resolve a dispute before trial (via settlement or ADR). The basic purpose of discovery is to take the “game” element out of litigating (or as some people like to say, prevent “trial by ambush”). The U.S. system wants everything out there, early on.
Engaging in a discovery process can facilitate several things:
- Preserve evidence for trial
- Narrow the issues for trial
- Provide basis for pretrial motions (that sometimes can adjudicate a lawsuit even before trial!)
- Promote settlement
How Involved Does Discovery Need to Be?
The discovery phase is typically the longest phase in any American lawsuit. In my experience, it spans at least one year, but that can increase to two or several years depending on how complex your case – it depends on how many documents and witnesses are involved, etc. Discovery involves many judgment calls that need to be made by clients and their lawyers. A few general considerations are:
- Because it’s a long process, it can get expensive. Cost also depends on which discovery mechanism you’re pursuing – for example, written discovery requests can be quicker/cheaper than depositions. However, some mechanisms are more effective – on the same vein, some make the call to skip written discovery requests entirely because the same information can be obtained through a deposition.
- To be honest, it’s rare to go through the discovery process without a single dispute coming up. Parties can fail to cooperate, lawyers can disagree about what needs to be turned over, etc. This can result in motion practice and hearings, which again is going to drive up costs. Parties should cooperate in good faith.
- Discovery abuse. It’s well known that some parties will use the discovery process to place a financial strain on their opponents. The strategy is to wear down the other side by making litigation too burdensome (and expensive) to go on.
Different Methods of Discovery
Below I describe the different discovery methods/mechanisms that can be used, and the pros and cons of each – written requests, depositions, physical/mental examinations, requests for admission, and expert discovery.
Interrogatories are written questions that require written responses. (Note: not all jurisdictions allow for interrogatories).
- They’re relatively inexpensive. Interrogatories are typically far less costly than depositions.
- Interrogatories require a party to provide information that is “available” to it. In contrast, a party can state it “doesn’t recall” something in the moment.
- Sometimes, interrogatories are also better than depositions for pinning down the contentions of a party.
- Interrogatories are often used as the starting point in discovery. They are used to gather overarching information that can later be pinned down to the details. Or, they can be used as follow-up after other discovery methods are used.
- In most cases, there is a limit on the number of how many interrogatories can be served.
- Lawyers help their clients write their responses, or sometimes write them completely – with lengthy objections to boot. There’s no element of catching a witness off guard. In the same vein, interrogatory responses aren’t really going to help in sizing up a party/witness’s presentability or credibility – a key factor in determining whether to go to trial or not.
- There’s no opportunity for immediate follow-up. The typical rule is that a party gets thirty days to serve responses, which makes for a slow process.
Requests for Production or Inspection Demands
Any party can demand to inspect another party’s relevant documents, things, or property in discovery. The purpose of this mechanism is to allow parties to review all hard evidence in the case, in their original forms. All parties in a lawsuit have a duty to preserve evidence.
- This process allows for a thorough inspection by a client and their lawyer. Most cases have at least hundreds of documents to review. And, property inspections can be as long as reasonably necessary.
- There is no limit on how many demands can be served (unlike interrogatories and requests for admission).
- There are considerations that specially come into play with document requests – concerns like overbreadth, privacy, and various privileges (attorney work product, confidentiality). If the demand is not complied with voluntarily, motion practice usually results.
- Where a case involves thousands of documents, the process of reviewing and producing documents will get very expensive.
Requests for Admission
Requests for admission are written requests that a party admit the genuineness of specific documents, or the truth of a fact, opinion relating to a fact, or application of law to a fact. Requests for admission are different from everything else mentioned above because they don’t seek to find facts – they seek to establish them.
- Requests for admission have preclusive effect, and denials may result in an award of costs of proof if they turn out to be false.
- Requests for admission can be the most powerful tool in discovery if used correctly and at the right time – not only in getting the parties to understand their respective strengths and weaknesses, but also in making sure any future proceeding or trial is as efficient as possible.
- If the opposing party admis a key fact, that may open the door to dispositive motion practice – which means you can avoid trial completely (or at least partially on certain claims).
- Unfortunately, requests for admission are also typically limited in number.
- While as stated above, you can get a key admission out of an adversary, this is rare.
Depositions are question-and-answer sessions that occur in person, with a court reporter transcribing everything simultaneously. Prior to, witnesses are often prepped and may even have obligations to review certain documents or company procedures (for example, if you’re testifying as your company’s “person most knowledgeable”).
- Arguably, depositions provide the forum for the most effective questioning. If the witness evades, you can follow-up. The witness’ memory and credibility are tested in real time. And spontaneous admissions are more likely to occur.
- They are quicker to set up – they can be set on 10 days’ notice.
- The option of video recording is available – which can have a great impact in jury trials down the line.
- As mentioned above, the witness can answer questions with “I don’t know” or “I don’t remember.” All that’s available during a deposition is a witness’ personal knowledge.
- They’re expensive. Depositions require a lot of preparation and out of pocket costs like a court reporter, sometimes a videographer, a transcript, etc.