Discovery is a key part of an attorney’s preparation for a trial or settlement. Learn more about how it works.

Topic Overview

Discovery is an essential process that happens in the early stages of civil litigation. Below, we examine the discovery process to describe the activities involved and what your legal counsel does during this critical phase of a civil lawsuit.

Key takeaways about the litigation discovery process

  • Discovery is an early stage of a lawsuit where attorneys gather and exchange information to understand the facts and develop a strategy. The purpose of discovery is to promote fair access to information for all involved.
  • Attorneys have several ways to seek information from opposing counsel and third parties during discovery.
  • Not all information is discoverable. Some information is protected by attorney-client privilege, the work product doctrine and other applicable privileges.

What is the discovery process in a lawsuit?

Discovery is a pre-trial exchange of information between counsel for the plaintiffs and defendants in criminal and civil court cases. The intent of discovery is to provide a fair trial where both parties can examine the evidence to prepare for a trial or settlement. This allows time to answer potential questions arising from the evidence.

U.S. courts have rules specifying what information is discoverable. These rules can vary by jurisdiction.

The discovery process typically begins after:

  • Plaintiff’s counsel files a lawsuit
  • Defendant’s counsel answers the lawsuit
  • Both parties have an opportunity to exchange replies
  • The defendant may file counterclaims
  • Both parties may file motions to dismiss, for summary judgment or to begin discovery

Is discovery always allowed?

Discovery might not be part of the process in some civil cases, including:

  • Small claims court cases
  • Some family law cases
  • Summary cases that don’t require juries

Skipping the discovery process can allow courts to resolve these cases more efficiently.

What information is protected during discovery?

Some information is protected during the discovery process. Let’s examine examples of court practices that make some information undiscoverable.

Attorney-client privilege

Any communication between a client seeking legal advice from an attorney is confidential. This can also include information exchanged with consultants, paralegals and other professionals acting on behalf of the client or attorney.

Attorney-client privilege allows open communication between lawyers and clients. It applies whether the attorney or the client initiates the conversation.

This privilege offers absolute protection to privileged communications, even if the opposing counsel demonstrates need. Clients can also waive the privilege.

Work product doctrine

Materials prepared with the expectation of a lawsuit may be protected under the work product doctrine. Protected materials might include emails, interviews, memos and other statements. The identities of those who were interviewed may also be shielded from discovery.

Materials typically protected by the doctrine might be discoverable if opposing counsel demonstrates a need for the information and can’t find it any other way.

Consult your attorney if you have questions about what information isn’t discoverable in your case.

What does an attorney do during discovery?

During the discovery process, attorneys:

  • Gather information and evidence about the case
  • Weigh key facts against applicable laws
  • Share information with the court and opposing counsel
  • Prepare for settlement or trial

How do attorneys find information during discovery?

Attorneys have several different ways of finding information during discovery. These are some of their key information-gathering methods.

Requesting admission

Attorneys can submit a request for admission, which allows them to ask a party to admit or deny a fact under oath. This can help both parties agree on major facts. Requests for admission typically contain multiple questions.

Requesting production of documents

A party’s counsel can request that another party provide copies of key documents. In some cases, an attorney may request to review original documents rather than copy them.

Requesting subpoenas

A subpoena can require third parties to produce documents, provide physical evidence or testify. Typically, an attorney requests that the court issue the subpoena. They are often issued for third parties, parties other than counsel for plaintiffs or defendants.

Submitting interrogatories

Interrogatories are written requests that attorneys submit to get case-specific information from another party. Typically, interrogatories are written as questions asking for basic information. The answering party must reply in writing, and their answers are given under oath. Specific rules often vary by jurisdiction.

Taking depositions

In a deposition, attorneys question witnesses. Depositions are handled out of court, and witnesses are under oath. Typically, depositions are verbal, but they can be written under some circumstances. They can be held in person, on a telephone call or during a video call. Testimony obtained during depositions may not be directly admissible at trial, but there are exceptions. Consult your attorney for rules specific to your case and jurisdiction.

What is a discovery request?

When one party needs information from opposing counsel, they send a written discovery request. This is often called “serving discovery.” Responding to discovery requests often has a 30–day deadline, but the deadline can vary by jurisdiction.

Consult your legal counsel for information about discovery request deadlines and what information isn’t subject to discovery.

What are the different types of witnesses in a deposition?

Character witnesses testify about people involved in the case, such as their character and reputation. This testimony can help a judge or jury decide whether a defendant, plaintiff or other party is generally law-abiding and trustworthy. Rules about character witnesses can vary by jurisdiction.

Expert witnesses know about a particular aspect of a case. For example, an expert witness with medical knowledge can testify in cases like the Paragard birth control lawsuit. A pilot’s expert testimony could provide insights about a software failure that caused an airliner crash.

Lay witnesses have first-hand knowledge about the facts of the case. They may even be participants in the events that led to the lawsuit. These witnesses are sometimes referred to as eyewitnesses.

Our complex litigation experience

Motley Rice attorneys have litigated and investigated complex cases across the country. They have the experience to adapt to trial processes and requirements in any jurisdiction. Our team’s experience includes:

Our team has also taken leadership roles in major multidistrict litigation cases against Big Pharma, major tech companies and global auto manufacturers.

Read more about our leadership experience in major consolidated lawsuits.

Sources
  1. Cornell Law School. Rule 33. Interrogatories to Parties.
  2. Upcounsel. Discovery Protections: Key Legal Privileges Explained.
  3. Womenslaw.org. Before the Trial.