What is discovery?

October 2, 2017

Topics: Employment Litigation

Most litigations, including employment litigation, have a phase in the litigation process called “discovery.”  Your lawyer may tell you that something will wait for “discovery,” or something may happen “after discovery.”  But, what is discovery?

Law suits are intended to resolve disputes, as when an employee files a claim against his or her former employer.  In order for any dispute to be resolved, the parties to the dispute (here, the former employee and the employer) need to each understand what occurred.  Most often, one side is not aware of actions taken by the other, or even if they are, they may not know why those actions were done.  Each side is looking at the situation through different lenses – seeing only the information they have.

Discovery is the portion of the litigation where each side has the opportunity to obtain information and documents that the other side has regarding the subject of the litigation.  It is the opportunity to “discover” what happened from the other side’s point of view.

Discovery can be done through several means.  The main ones are:

  1. Document Requests: Each side has the opportunity to send a written request to the other side seeking different documents that are thought to exist that would be relevant to the litigation.  For example, the employee usually asks for copies of his or her personnel file and any write ups about the job performance.  The employer usually asks for documents showing efforts the employee made to find another job.
  2. Interrogatories:  Interrogatories are written short- (or not so short) answer questions that each side sends to the other seeking information in the form of written responses.
  3. Party Depositions: A deposition is the opportunity for each lawyer to ask questions of the other party under oath.  The deposition is attended by a court reporter who makes a verbatim recording of the proceedings.
  4. Third-Party Depositions: A “third party” is a person who is neither the plaintiff nor defendant in a litigation, but who may have relevant information regarding the case.  Lawyers for the employer may seek to depose doctors who treated the former employee if he or she is claiming certain types of physical or mental damages as a result of the employer’s alleged actions.  Lawyers for the employee may seek to depose various managers or employees or HR representatives that the plaintiff believes have information regarding the case.
  5. Inspections: Where appropriate, one side can seek to inspect a location, or physical property, or a computer or other physical thing the party thinks is relevant to the litigation.

There are usually some number of months set out in the court rules, or a judge’s scheduling order, during which discovery actions can proceed, as well as a “discovery cut-off date” by when all discovery is supposed to be completed.  Discovery usually takes quite a while.

Every lawsuit is different.  What is appropriate discovery in a given case, may not be relevant to another.  Each lawyer works out a strategy to gather the information he or she thinks is necessary to win.  If you should be involved in an employment litigation, your attorney will discuss with you the discovery actions appropriate for your case.