THE DISCOVERY PHASE OF LITIGATION

After a lawsuit is filed and prior to trial, both parties to a lawsuit have the right to discover more information about the opposing party’s case in preparation for trial. This is called “discovery” and is basically a fact gathering process. Discovery can be in the form of written questions, which are sent to the opposing party for them to answer and/or to produce documents. Certain objections may be raised by the opposing party if they believe that the requesting party is not entitled to the requested information. These objections may include that the information sought is irrelevant or protected by privilege. If there is a discovery dispute, the party requesting the discovery can request an oral hearing before the court to compel the opposing party to respond.

Discovery can also include depositions. The attorney for each party has the right to interview the witnesses for the opposing party. A deposition typically occurs in an attorney’s office. The attorneys for both sides are present as is the witness, otherwise known as the deponent. The deposition is taken under oath before a court reporter and carries the same weight as if the witness were testifying live before a judge and jury. Depositions can be used for various reasons. One reason is so that a party can learn what the other party knows about the case. Another reason is that a party can use the witness’ testimony at trial against the witness if the witness has testified differently in the deposition than at trial. Another reason why a deposition may be taken is to preserve the witness’ testimony if it is anticipated that the witness will be unavailable for trial.

The discovery phase should be considered the most important part of the lawsuit since it is during this phase that a party learns the strengths and weaknesses of the opposing party’s case.