U.S. Litigation Basics – The American Discovery Process (Part 1)

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:

1. 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.
2. 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.
3. 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.

In part two, we’ll be covering 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.