To prepare for trial, the parties in a lawsuit gather and exchange information in what is known as the discovery phase of litigation.
The formal process of discovery helps both sides access relevant evidence, learn the important facts of a case, and understand key witnesses and their testimony to inform case strategy ahead of trial.
Governed by the Federal Rules of Civil Procedure, discovery is central to any form of dispute resolution that calls for the collection of facts, whether litigation, internal investigations, or arbitration.
A number of methods of discovery are available to parties in civil litigation, including requests for production of documents, requests for admissions, interrogatories, and depositions.
The formal process of discovery helps both sides access relevant evidence, learn the important facts of a case, and understand key witnesses.”
Today, you may hear the word “discovery” and “ediscovery” used interchangeably. Technically, ediscovery is a subset of discovery. Short for electronic discovery, ediscovery describes the collection and exchange of electronically stored information (ESI) that’s generated in our increasingly digital world.
For anyone new to the discovery process, it’s essential to understand why discovery is important, the rules that govern the process, and the key methods by which discovery is carried out.
Why Is Discovery Important?
In civil cases, discovery often kicks off when the plaintiff files a complaint in court against the defendant. As the pre-trial phase in a lawsuit, discovery is central to preventing surprises at trial. Allowing both sides to learn what witnesses and evidence may be used in court gives time to secure counter evidence and assemble a response.
Armed with the facts of the case each party can evaluate the strength of its case and build a litigation strategy for the most favorable outcome,”
During discovery, lawyers for the parties exchange potential evidence and scope out and plan their case ahead of trial. Armed with the facts of the case each party can evaluate the strength of its case and build a litigation strategy for the most favorable outcome, whether that’s battling it out in court or aiming for early settlement.
What Are the Rules Of Discovery?
In the United States, the discovery process is governed by the Federal Rules of Civil Procedure (FRCP). Adopted in 1938, these rules introduced one of the widest standards of discovery in the world. They define the timing of hearings, required disclosures, how to request information, and remedies when a party doesn’t comply with the rules.
The FRCP authorized broad discovery into “any matter, not privileged, which is relevant to the subject matter in the pending action, whether relating to the claim or defense of” either party.
In essence, parties to a civil action are able to request just about any documents which could reasonably lead to the discovery of evidence that is admissible in court. This means that testimony and information can be discoverable even if it’s not directly relevant to the case – if that material could lead to the discovery of separate evidence that would be relevant.
Ediscovery is an essential part of today’s litigation process, as communication has shifted to the digital space. The categories of discoverable ESI are ever evolving. Typically they include relevant emails, instant messaging chats, text messages, electronic documents, accounting databases, voicemail, audio and video files, metadata, and information on social media platforms and websites.
The purpose of ediscovery is to exchange that potentially relevant information, without irrelevant, privileged, or otherwise unnecessary data, so that the parties are equipped with the best possible understanding of the facts of a matter. Legal teams at law firms, corporations, government offices, and other entities use modern technology to streamline the various aspects of the litigation and investigations process to get to the heart of a matter faster than manual processes allow.
Under discovery rules, if the other party objects to a discovery request and has failed to comply fully with the initial request, the requesting party may seek the help of the court by filing a motion to compel discovery.
What Is Privilege In Ediscovery?
Certain legal limits to what is discoverable exist. For instance, the law protects confidential or private information exchanged between people in certain relationships. This special protection is known as privilege. Communications protected by privilege cannot be compelled to be disclosed during legal proceedings.
Communications protected by privilege cannot be compelled to be disclosed during legal proceedings.”
Generally, communications are protected between – but not limited to – the following parties:
This legal privilege between attorney and client prevents the lawyer from being required to testify against the client by keeping oral, written, and electronic communications between them related to legal advice confidential. Protected communications can even include gestures, such as a nod of the head. The work product doctrine extends attorney-client privilege beyond communications, to include documents prepared by the lawyer or client in anticipation of litigation, even if they do not involve communication between the lawyer and client.
Doctor-patient privilege, also referred to as physician-patient privilege, covers confidential communications between a doctor and a patient. Communications between doctor and patient are protected from disclosure when they take place as part of a professional relationship to enable the patient to fully disclose information about an illness without jeopardizing the patient’s privacy.
Spousal privilege, also known as marital privilege, covers spousal communications, which safeguards information shared in a marriage, unless the spouses sue each other in a civil or criminal case; while the spousal testimonial privilege protects a spouse from having to testify against the other in criminal proceedings.
Why Is Proportionality Important In Discovery?
To protect against over-discovery, particularly at a time of explosive volumes of electronically stored information, the FRCP was updated in 2015 with a proportionality requirement. This allowed courts to do a cost-benefit analysis for the needs of the case, balancing the importance of information against the burden of producing it.
Rule 26(b) details six factors, including cost, to determine whether a data set is “proportional” to the needs of a case:
Importance of the issues at stake in the action
Amount in controversy
Parties’ relative access to relevant information
Importance of the discovery in resolving the issues
Whether the burden or expense of the proposed discovery outweighs its likely benefit
Common Types of Discovery: Gathering the Facts
There are three main forms of discovery: oral, written, and document production.
Requests for Production and Document Discovery
On the one hand, a request for production is one of the most helpful discovery tools. It allows a party to gather evidence through a written request for documents, Electronically Stored Information, and other tangible items. Any relevant, non-privileged information in the opposing party’s hands is fair game.
In complex cases, this method can also be very expensive thanks to the volume of relevant and responsive documents that require processing, review, and analysis.
Document discovery will generally begin when a lawsuit is on the horizon and continues until trial. The goal is to get information that supports the claims or defenses that the parties will rely on at trial, typically involving these steps:
Identify relevant data and place it on legal hold.
Determine the scope of discovery, pinpoint the relevant ESI, and initiate ediscovery requests and challenges.
Negotiate search parameters, identify relevant evidence, and screen out irrelevant information to reduce the overall effort required for search, review, and production.
Extract, analyze, and convert evidence into PDF or TIFF format for use in court.
Requests for Admission
While depositions and interrogatories are means to collect as much evidence for proof to use in trial, requests for admissions can help make trial more efficient by narrowing the course of a case. They are used to ask parties to a lawsuit in writing to admit or deny certain statements made under oath. Once established as true, the facts admitted to through this discovery method cannot be argued in court.
Requests for admissions can also be used to verify that documents are authentic.
Under Rule 36(a)(3), a request for admission requires a response within 30 days.
A subpoena is a written court order requiring the production of certain types of evidence. It can also compel a person to testify.
In addition to taking depositions, both parties can submit written questions, called interrogatories. These must be answered within a period of time in writing under oath. The FRCP limits the number of questions that can be used in interrogatories to 25, though the court can allow more.
Interrogatories don’t entail court reporter fees, transcript costs, or attorney travel time so are generally less expensive than depositions.
A deposition is a statement given outside of court under oath by anyone involved in the case. During a deposition, attorneys question witnesses, experts, and other parties before trial. A witness either agrees to appear at a deposition or is required to appear through a court-issued subpoena.
Typically, lawyers for all parties are present and participating at a deposition, as well as a court reporter who records the proceeding. Depositions can lead to candid responses because the answers are not prepared in advance.
The testimony in the form of a written transcript or a video tape may be used at trial.
Depositions give lawyers insight into what testimony and evidence the opposing side will present at trial.
For more strategies to improve your deposition process, see our guide to deposition best practices here.
Overcome Growing Ediscovery Challenges with the Right Technology
Discovery is a critical part of the litigation process. It is the core of a fair judicial system, where facts can be freely uncovered and cases decided based on the truth of what happened.
Forward-thinking legal teams are adopting modern ediscovery solutions that streamline the discovery process.”
However, the exponential increase in data volumes in the digital age can easily overwhelm parties in oceans of documents, making it hard to get to the truth of a matter. The law provides guardrails to balance the importance of information sharing against the burden of producing and reviewing it.
The challenges of ediscovery continue to evolve with the changing nature of modern communication and collaboration. The rise in popularity of Zoom, Slack, MS Teams and other enterprise tools, for instance, is creating new complexities and pressures for legal teams when it comes to collecting, sorting, reviewing, analyzing, and producing electronic data.
Not surprisingly, managing the sheer volume of data and new and complex file types remain significant issues for legal professionals. Forward-thinking legal teams are adopting modern ediscovery solutions that streamline the discovery process by automating tasks that previously required manual intervention, while improving the quality of legal work.