How the Discovery Process Works in Business Disputes

If Your Business Is the Plaintiff or Defendant

The Discovery Process in Business Lawsuits
The Discovery Process in Business Lawsuits. Hero Images/Getty Images

You and your business may be involved in a lawsuit at some time. Let's hope that doesn't happen, but if it does you should be prepared with information. This article discusses the discovery process in business lawsuits and your responsibilities as a plaintiff or defendant

What Is the Discovery Process? 

Business lawsuits are handled through the civil litigation process. The other process, the criminal system, has different procedures for discovery.

 

One of the most important parts of the litigation (lawsuit) process is discovery. The discovery process is a fact-finding process, that is a major part of the pre-trial process that comes before the actual trial. The purpose of discovery is to gather information and make both parties in the lawsuit aware of this information.

The ins and outs of discovery are something all business owners should be aware of. You need to know what to do when you are asked to provide documents or give a deposition.

Why Is the Discovery Process Important? 

Many lawsuits don't get to trial (they are settled out of court). But almost all lawsuits undergo the discovery process, because this process happens before the case goes to court.

What happens during the discovery process, and the information discovered, can influence whether or not the case will come to trial. In addition, having the information from the discovery process can be vital to a case if a witness is unable to testify at trial or if documents are not able to be used at trial.

 

All of the information gathered in the discovery process is supposed to be considered as being given under oath.

If you are giving information or testimony under oath, you are making a formal promise to tell the truth. Yes, this is the saying that you swear to "tell the truth, the whole truth, and nothing but the truth." The assumption that everything is "under oath" applies as much to information given during the discovery process as it does for testimony in court.

It's important to remember that lying under oath is called "perjury," which is a serious offense. 

What Is the Judge's Role in Discovery? 

The discovery process is conducted under the watchful eyes of the judge in the case. The judge doesn't participate except to settle disputes in the process. For example, if one side is expected to produce documents, and the other party claims that producing the documents would violate confidentiality or proprietary information (owned by the business), the judge would rule. 

How Does the Discovery Process Work? 

The discovery process involves requests by both parties in the lawsuit of each other. Request can be made for any information that will provide statements of fact. The goal of the process is to give facts to the other side. The more facts that can be agreed to, the smoother the process. 

Two kinds of information are gathered during discovery: documents and testimony. In every case, you will be given a deadline and specific requirements for producing documents, interrogatories, and for giving testimony. 

Documents requested in discovery for a particular lawsuit might include statements of fact or interrogatories. Interrogatories are question and answer documents that are sent to someone who has information.

The responses to the questions must be provided, and under oath. Other documents must be provided as demanded by the court, and again the assumption is that these are given under oath. Documents can't be altered in any way. 

Information may also be gathered by questioning potential witnesses and experts through the process of depositions. Depositions may be given in person or by video. Information gathered through depositions may be used if the person cannot appear at the trial as a witness. 

Other information may be gathered in discovery by requests for admission (requests for the other party to admit or deny a statement) and requests for production (of documents). 

Types of people who may be called for depositions might be expert witnesses or other witnesses. For the most part, witnesses are required to attest to how they work or what they do.

 

The details of how the discovery process is handled for a particular case depends on where the case is being heard. Most states follow the federal process, through the uniform law commission's guidelines, but some states have their own process. 

Discovery in civil cases can take many months, depending on availability of witnesses and the time it takes to produce documents and gather information. The case doesn't proceed until the discovery process is complete. Many civil cases are settled after discovery, with both parties in agreement. 

Is There Discovery in a Small Claims Case?

Because a small claims case doesn't include a lengthy pre-trial process, discovery is not part of the process. The documents and information are usually brought to the hearing by each party. For example, if your business is claiming payment for services rendered, you would bring your documents to show that the services were indeed rendered. In these cases, the parties are still considered under oath, essentially stating the the information provided is complete and true. 

What Are Some Tips to Help Me With the Discovery Process? 

  • Abide by deadlines, as much as possible. Provide what's asked for by the deadline. If you can't comply, you may be able to ask for more time. For example, if you are required to give a deposition on a specific date, and you can't make it, there should be a process for requesting a new date. 
  • Take it seriously. It is serious. You will be under oath. If you give testimony, make sure it is complete and truthful. If you are required to produce documents, don't attempt to alter them or to hide some. 
  • Hire an attorney. If you are a litigant (plaintiff or defendant) in the lawsuit, you will certainly have an attorney to represent you. If you are not a litigant, and you are a business owner, hire an attorney to help you with whatever information you are required to provide, to protect your business.