Discovery
The pre-trial phase of litigation where each side obtains evidence from the other — through depositions, interrogatories, document requests, and admissions.
Discovery is the formal information-gathering phase of litigation, governed by court rules (Federal Rules of Civil Procedure in federal court; state equivalents in state court). Its purpose is to prevent trial by ambush — both sides should enter trial knowing what the other will present.
The four main discovery tools are: interrogatories (written questions requiring written answers under oath), requests for production of documents (demanding emails, contracts, records, data), requests for admissions (asking the other side to admit or deny specific facts), and depositions (live questioning of witnesses under oath, recorded by a court reporter). Electronic discovery (e-discovery) — emails, texts, database records — is now the largest cost driver in complex litigation.
Discovery can be enormously expensive. In complex commercial litigation, e-discovery alone can cost $100,000–$1M+ before trial. Most cases settle during or after discovery once both sides see the evidence. Failure to comply with discovery obligations can result in sanctions, adverse inference instructions to the jury, or case dismissal.
Real-World Example
During discovery, the plaintiff's attorney requested all internal emails about the defective product; the company's failure to preserve emails after litigation was foreseeable resulted in a court sanction and adverse jury instruction.