Litigation can be complex, expensive, time consuming, and contentious! These same four words can be said of discovery, the process whereby each side learns the facts supporting the other side’s case.

Litigation and discovery, in fact, go hand in hand, and although difficult at times, it is important to understand the process and appreciate why it is not only necessary but a powerful and important tool.

Discovery, or the “discovery process,” is exactly what the name implies:

• It is the process of discovering evidence to prepare your case for trial.
• It also involves discovering the evidence of the other party.

The purpose of discovery, and the ideals behind it, is to promote the truth-seeking function of litigation.  In other words, it is designed to make trial less of a game and more of a fair contest. 

There are two broad categories of discovery: Written Discovery (which includes interrogatories and requests for production of documents, the two most common forms), and depositions.

Interrogatories: Interrogatories are nothing more than written questions prepared by the attorney and sent to the other side. The opposing party is then required to answer the questions and affirm, under oath, the answers are true. These questions are usually very specific, asking for information such as dates and times, descriptions of events and even the identification of witnesses.

Requests for production of documents: Not surprising, requests for production of documents require the other party to produce documents in that party’s possession which are relevant to the case. The determination as to what is or is not relevant hinges upon the particular facts of the matter at hand; there is no “one size fits all.”  Unlike interrogatories, requests for production of documents may be sent to non-parties. Non-parties are individuals or business entities that are not involved in the lawsuit but may possess documents that contain information that is relevant to it.

Depositions: A deposition is a sworn statement of a party or a witness that is given in the presence of a court reporter. The court reporter records the questions asked of the witness and the answer he or she gives. The court reporter then converts the recording into a written transcript that can be used at trial if the witness is unavailable. The deposition transcript can also be used to ensure the witness does not change his or her testimony at a later date.

Ultimately, discovery enables a more comprehensive understanding of the facts and allows for more informed and strategic decisions as the case is being prepared for trial. Having a clear path on which to navigate also increases the possibility the case may settle.

Because of this, investing time and effort in the discovery phase can have considerable cost savings later on down the road!