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Individuals that are thinking about filing a lawsuit are often confused by the various parts of a lawsuit. One of the more confusing parts of any lawsuit is discovery, or the exchange of facts and evidence between the parties.
Discovery is the legal term used to describe the different processes that require parties in a lawsuit to exchange information that each side possesses. For example, in an employment law case, a fired employee will want to see their personnel file, and through discovery, an employer would likely be required to provide those documents.
Below, you can read about the discovery process, the various tools, and how disputes get resolved.
The Discovery Process
When a lawsuit gets filed, that is considered the formal start to court litigation. Usually, once a defendant answers the complaint, discovery can begin. Formal requests get sent from one party to the other, requesting answers to questions, specific documents, and other evidence, like video or audio recordings, medical files, bank statements, tax records, electronically stored information, and more.
Courts generally limit the period of time for parties to conduct discovery, but parties may be able to, and it is customary to do so, agree to extend deadlines. For some deadlines, court approval will be required.
Often discovery will be conducted in rounds, so that the parties may attempt to negotiate a settlement between engaging in rounds of costly discovery (and it can be very costly). As new information is learned, parties are better able to assess their relative positions, and may be more willing to bargain.
In federal cases, the Federal Rules of Civil Procedure (FRCP) provide the parameters of discovery, while cases in state courts rely on each state's own rules of civil procedure to govern the process. To facilitate the exchange of information, regardless of whether it is a federal or state case, the law generally provides for the following discovery tools, or discovery devices, as they are sometimes referred to as:
When a discovery dispute arises, which you can rest assured almost always happens, the court will serve as the arbiter of the dispute if the parties cannot resolve it on their own. Disputes can arise for many reasons, but are most frequently due to either a discovery request that wasn't responded to at all due to an objection, or when a provided response is alleged to be insufficient or incomplete.
To resolve discovery disputes, the parties document their perspective on the dispute, perform legal research as to how prior courts handled similar disputes, then file written motions with the court requesting a ruling in their favor.