US: What Is Discovery in Civil Litigation – and What Should I Expect?

Genna Wolinsky, Legal Analyst

Genna is a US Legal Analyst who came to McO with a background in plaintiff’s-side litigation and class-action lawsuits. At McO, she focuses on employment, higher education, and sexual abuse cases. She plans to qualify as a US lawyer in the future.

Lawsuits are built on facts, but not all facts are available at the beginning of a case. For this reason, once a case gets past the filing of the initial complaint and the subsequent response from the responding party, or what is known as the “pleading stage,” it then proceeds to the discovery phase.

What Is Discovery in a Civil Lawsuit?

During this phase, the parties exchange information amongst each other that relates to the lawsuit’s claims. This is often the longest and most time-intensive period in a lawsuit, as the process of gathering information can be incredibly labor-intensive. Discovery, however, can take many forms, including:

• Requests for admission (RFAs), in which parties lay out facts that the responding party must either admit or deny.
• Requests for production (RFPs), in which parties ask the responding party to produce documents (including texts, emails, photos, etc.) that relate to the claims at issue.
• Interrogatories (ROGs), in which parties pose questions related to the claims to which the other side must respond.
• Depositions, in which parties have the opportunity to interview witnesses or other individuals with relevant knowledge about the case. They can then use this testimony at later stages of the case, such as motions for summary judgment or trial.
• Expert reports: An expert report is a report commissioned by each party to help prove their case and their damages. These experts often conduct interviews with the parties and research relevant points before writing a report that is exchanged with the other side. The responding party then may have the chance to hire experts of their own to rebut the opinions of the initial experts, and the parties can depose the experts after their reports have been exchanged.

What Should I Expect During the Discovery Process?

Though discovery can be an arduous process, it is an opportunity to gain a greater understanding of each party’s point of view and support for their claims. With this greater understanding, the parties are often more likely to settle, now knowing the full scope of the evidence that exists because they have a better sense of their prospects at trial. This information also provides a basis for future summary judgment motions in a lawsuit, which are motions that ask the court to rule on claims based on facts that the parties do not dispute. Determining which facts are undisputed is most often ascertained through the discovery process. Lastly, the information produced in the discovery process forms the bulk of evidence that is used at trial, and sets expectations for what trial may look like.

Regardless of what follows the discovery phase, whether that be settlement or trial, it is an incredibly significant part of the litigation process, and the information it reveals is often crucial to proving one’s case.