‘Discovery’ is more than a stage in litigation — it’s the battleground where much of the real legal warfare takes place. In this pretrial phase, attorneys on both sides exchange information, uncover critical facts, and position themselves for settlement or trial. It can be costly, time-consuming, and complex, but it is also indispensable. Understanding how discovery works — and how to do it well — is essential not only for litigators but also for those who find themselves entangled in litigation.

What Is Discovery?

At a fundamental level, ‘discovery’ is the pretrial phase where both parties are allowed to seek information from one another. Its purpose is twofold: (1) to uncover facts relevant to the case and (2) to help attorneys assess the strength of their positions. Attorneys use various methods and tactics during the discovery phase, including document requests, interrogatories, requests for admissions, and depositions.

As Timothy Pastore, partner at Montgomery McCracken Walker & Rhoads LLP explains, discovery in federal litigation is governed by the Federal Rules of Civil Procedure (FRCP), particularly Rules 26-37. These rules are designed to ensure transparency and fairness while avoiding undue burden or cost. It is important to note that discovery rules at the state level can vary significantly.

Critically, discovery isn’t just about finding out what happened — it also sets the stage for potential dispositive motions, settlement discussions, or trial. As Steven Reingold, partner at Saul Ewing LLP, notes, the information uncovered during this pretrial phase can determine whether a case settles early or proceeds to a courtroom showdown.

Rule 26 and the ‘Principle of Proportionality’

FRCP Rule 26(b)(1) sets the scope of discovery. It allows the litigants to obtain any nonprivileged matter relevant to the opposing party’s claim or defense, so long as it is “proportional to the needs of the case.”

In considering a discovery request, courts consider factors such as:

• The importance of the issues at stake
• The amount in controversy
• The parties’ access to relevant information
• The parties’ resources
• The importance of the discovery in resolving issues
• Whether the burden or expense outweighs its likely benefit

Adam Russ, partner with Gordon Arata, notes that FRCP Rule 26(b)(1) was introduced to prevent fishing expeditions and reduce litigation costs that can arise from broad discovery demands. This is particularly important for complex commercial cases where electronically stored information (ESI) can run into the terabytes.

The Stages of Discovery

Initial Disclosures: Setting the Table

The first formal step in discovery is initial disclosures, which are governed under FRCP Rule 26(a)(1). Jeff Leon, senior counsel at Karon LLC, explains that these mandatory exchanges require each party to disclose:

1. Names and contact information of individuals likely to have discoverable information
2. Copies or descriptions of documents and ESI relevant to their claims or defenses
3. Computations of damages and the supporting materials
4. Any insurance agreements that may apply

These disclosures, while often seen as procedural, are critical in shaping the trajectory of the case. Failing to provide timely or adequate disclosures can lead to sanctions or exclusion of evidence.

Written Discovery: Paper Trails and Digital Footprints

After initial disclosures, litigants move into formal written discovery. The major tools available to counsel during this phase include requests for production (RFPs), interrogatories, and requests for admission.

Requests for Production (RFPs)

Under FRCP Rule 34, requests for production may include: traditional hardcopy files, ESI (email, metadata, spreadsheets), and physical evidence like machinery, clothing, or damaged goods.

Given the dominance of ESI, discovery often involves forensic collection and metadata preservation. Missteps in this area can lead to spoliation claims — accusations that a party intentionally destroyed or altered evidence, which can carry serious penalties.

Interrogatories

Under FRCP Rule 33, interrogatories are written questions answered under oath. These are often used to gather foundational information like identities of witnesses, chronology of events, or basis of claims.

Pastore warns that responses must be carefully crafted. Interrogatories are not just information gathering tools; they’re also binding admissions. Be cautious with subparts — Rule 33(a)(1) limits parties to 25 total interrogatories including subparts, unless granted leave by the court.

Leon recommends supplementing written discovery with live depositions where narrative or nuance is needed and suggests using interrogatories to lock in facts, but reserve strategic questions for deposition.

Requests for Admission

Governed under FRCP Rule 36, ‘requests for admission’ is a tool used to establish specific facts as true, such as the authenticity of documents or the occurrence of specific events. As Leon notes, they’re especially useful for setting up evidentiary foundations.  However, Pastore warns that parties often avoid giving meaningful answers. In those cases, motions to compel or sanctions may be warranted. Failing to respond to a request for admission within 30 days can result in automatic admission.

Oral Discovery: The Art of the Deposition

Depositions, governed by FRCP Rule 30, are perhaps the most strategic element of discovery. They are live examinations of witnesses under oath, which can have real trial consequences.

Depositions serve several key functions, including to:

• Lock in testimony
• Test witness credibility
• Explore inconsistencies
• Establish groundwork for motions or trial

Under the FRCP, parties can depose any person, including third parties via subpoena, subject to limits on duration (typically seven hours per witness). These sessions are recorded by stenographers and, increasingly, by video.

Jeff Leon emphasizes that a deposition is not just about gathering facts and that it might be the only testimony possible if a witness later becomes unavailable. He urges counsel to treat depositions like trial testimony — ask the foundational questions and assume the transcript will be read to a jury.

Third Parties and Corporate Representatives

Discovery isn’t limited to the parties in the case. FRCP Rule 45 allows for subpoenas to compel third parties to provide documents or testimony.

For corporate entities, FRCP Rule 30(b)(6) permits a party to depose a designated corporate representative, whose testimony is binding on the entity.

Pastore explains that it doesn’t matter if the representative has firsthand knowledge; they must be educated on the topics on which they’ve been designated to speak. A corporate entity that fails to prepare its designee can face court sanctions or additional depositions.

Expert Discovery: Opinions That Can Win or Lose Cases

Beyond fact witnesses, many cases can hinge on expert testimony. FRCP Rule 26(a)(2) requires expert witnesses to disclose their identities, produce a written report, and be subject to deposition. Russ explains that depositions of experts differ from those of fact witnesses, where counsel has the added task of testing logic, methodology, and credibility.

Expert witness written reports include:

• A complete statement of opinions
• The basis and reasons for those opinions
• Data considered
• Exhibits used
• Witness qualifications and compensation

Discovery Disputes and Sanctions

When discovery breaks down, courts expect parties to meet and confer in good faith before involving the judge. FRCP Rule 37 governs motions to compel and sanctions. If a court finds that a party failed to comply, it may:

• Compel production
• Strike pleadings
• Dismiss claims
• Enter default judgment
• Award attorneys’ fees
• Hold the party in contempt

Judges hate discovery disputes. Pastore advises caution here: don’t bring a motion unless all other options to resolve the dispute have been exhausted.

Final Takeaways

Discovery may not be glamorous, but it’s where cases can be won or lost. It is an incredibly important opportunity to learn the case and build credibility with your client and the court. As Russ puts it, if you show up to trial without having done the work in discovery, you’ve already lost.

To learn more about this topic view Litigation Basics / Discovery Practice. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about litigation. 

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