In common law jurisdictions, the discovery phase is a phase of pre-trial procedure in a lawsuit during which each party can obtain evidence from other parties.
Examples of methods:
- Request for production of documents
- Requests for admissions and depositions
- Interrogatories
Discovery can be obtained from non-parties using subpoenas.
Resistance
- When a discovery request is objected to, the requesting party can file a motion to compel discovery.
- A party or non-party objecting to a discovery request can file a motion for a protective order.
Background
Legal discovery is a concept in many common law jurisdictions, but the exact rules will vary.
In the United States, the first truly comprehensive discovery system for U.S. federal courts was created by the promulgation of the Federal Rules of Civil Procedure (pursuant to the Rules Enabling Act) in 1938. The Federal Rules of Civil Procedure (FRCP) authorized broad discovery into “any matter, not privileged, which is relevant to the subject matter in the pending action, whether relating to the claim or defense of” either party.
Prior to the FRCP, many state governments had regularly permitted one or more methods of discovery, but no state had attempted to permit litigators to use all of them. Through the FRCP, the United States got one of the broadest discovery systems in the world.
An element of discovery where the United States differs a lot to other common law countries is how, in the U.S., discovery is mostly performed by the litigating parties themselves, with very little judicial oversight.
The U.S. discovery system has been harshly criticized, with one of the main points of contention being how parties can deliberately drain each other´s resources by making ostentatious information requests. On December 1, 2015, a new version of the FRCP went into effect, somewhat limiting the very broad discovery system. Among other things, the new version of the FRCP expressly states a proportionality requirement for the scope of discovery.
Note: The FRCP applies to discovery in the U.S. federal court system, but many states follow a similar version based on FRCP, Chapter V “Depositions & Discovery” Federal Rules of Civil Procedure. Many states have also adopted the Uniform Interstate Depositions and Discovery Act to provide uniform process when discovery will take place out of state.
Civil Discovery
Civil discovery is wide-ranging in the United States, and parties can require disclosure of information that the reasonably calculated to lead to the discovery of admissible evidence. Data show that a majority of civil cases in the U.S. are settled after the discovery phase, to avoid the risk and expense of a trial.
Failure to make or cooperate in civil discovery can result in sanctions. As mentioned above, the Federal Rules of Civil Procedure guide discovery in the U.S. federal court system, and most state courts follow a similar version based upon the FRCP, Chapter V. Rule 37 of the RFCP stats that if a party does no respond to a discovery request, sanctions can be placed upon that party.
If a party wishes to object to a discovery request, Rule 37 states that the objection must be done in writing to the other party, and include the reason or reasons for not answering the discovery request. After this, both parties must confer in an attempt to reach an agreement, and failure to reach an agreement can result in fines for the offending party. If no agreement is reached, the party that requested the information must petition the court for an order to force the other party to answer. If the other party refuses to answer, the court can do several things: the non-answering party can be fined, evidence from the non-answering party can be prevented from being admitted, and the court can even have the non-answering party´s claim dismissed partially or completely.
Criminal discovery
In the United States, criminal discovery is guided by the rules set forth in Brady v. Maryland. The prosecutor is obligated to provide the defendant with any informally that is exculpatory or potentially exculpatory. (The information must be provided even when there is no such request from the defense.)
If the defendant requests discovery from the prosecution, the prosecutor is allowed to request reciprocal discovery. The Fifth Amendment rights of the defendant limits the prosecutor´s ability to obtain discovery. In a criminal case, the defendant has constitutional protection from self-incrimination.
Why Knowing About Legal Discovery is Important for Business Owners
If your company is ever sued, or sues someone else, you’ll be expected to hand over everything relevant—including data you may have forgotten about. And if your records are a mess or if you’re found to have deleted key information? That can get expensive fast—not just financially, but in court credibility too.
Thinking about discovery should start long before any lawsuit. In the United States, it is advisable to have a proper routine in place for storing emails, managing files, handle communication—and yes, even how you chat on Slack. If you run a business, lead a team, or just handle sensitive information, you’re part of the discovery process whether you realize it or not.
From a legal perspective, discovery is what happens before the courtroom fight really starts, when parties request evidence from each other to support legal claims. And in today’s digital world, that evidence often lives in email threads, internal messages, cloud drives, and even deleted files you thought were gone for good.
It’s easy to think discovery is something lawyers handle “later,” but a surprising amount of damage happens long before legal action begins. For example:
- Keeping sloppy records.
- Mixing personal and business communication.
- Letting employees use unmonitored channels like WhatsApp or private email.
- Not having a plan and sticking to a routine for data retention and data deletion.
These everyday habits can turn into legal liabilities because, in discovery, everything is on the table. If it exists, it can be requested. If it’s relevant, it must be turned over. If something is suspiciously missing when everything else has been retained, that can a be a problem too.
The goal here isn’t to scare you into paranoia or make you suddenly delete your inbox (please don’t do that). It’s to give you a plain-English understanding of legal discovery—and show you how to operate in a way that protects your business and your privacy before anything escalates.
We will take a look at few different points that are important to know, including what legal discovery involves, what kind of documents and data that can get pulled into lawsuits, how to keep your business organized in a way that doesn’t leave you exposed, and how to reduce risk through smart communication and data hygiene.
You don’t need to be a lawyer to improve your chances of stay out of serious trouble. If you understand how discovery works, you can build habits that will protect your company and your reputation if the day ever comes when someone wants to “see the files”. If you’re not thinking about discovery now, it may be too late when it matters most.
The Anatomy of Legal Discovery: What You’re Really Dealing With
Legal discovery sounds like a niche courtroom process most people don’t need to worry about. But if you own a business, manage a team, or even just send work emails, you’re already in the game—whether you like it or not. Discovery is how lawsuits get built in the United States, and it’s not just about guilt or innocence. It’s about what exists, what can be found, and how it can be used.
At its core, legal discovery is the process where each side in a lawsuit gathers and exchanges information that could be relevant to the case. It happens during the pre-trial phase, and it’s designed to make sure no one gets ambushed with surprise evidence in court. But it’s far more than just handing over a few emails.
Let’s say someone sues your company claiming discrimination. During discovery, they can request HR emails, Slack chats, text messages, hiring documents, and even calendar invites to build their argument. If your business kept poor records or used off-the-record channels, that’s not just inconvenient—it can hurt your case.
Civil Discovery vs. Criminal Discovery
As mention above, U.S. law distinguishes between civil case discovery and criminal case discovery. In civil cases (like employment disputes or contract breaches), both sides are obliged to exchange evidence. The goal is fairness, even if one side doesn’t have a smoking gun. In criminal cases, discovery works a little differently. The prosecution must share its evidence with the defense, but the reverse isn’t always required. Still, if your business ends up entangled in a criminal investigation—even as a third party—you could be on the hook to produce data.
The Tools of Discovery: Requests, Depositions, and More
Discovery isn’t one big document dump. It’s a series of specific requests and processes designed to get detailed answers. Below, we will look at some of the most commonly used tools.
Subpoenas
A subpoena is a formal order requiring you to do what the subpoena asks of you. Typically, you will be required to show up for testimony or produce certain evidence (e.g. records). It doesn’t mean you’re guilty of anything—but you’re legally required to comply. A subpoena is a written order issued by the court.
Depositions
Depositions are recorded, under-oath but out-of-court interviews where attorneys ask you questions—sometimes for hours. What you say becomes part of the record and can be played or quoted in court. The deposition can be preserved as a written transcript, a video, or both.
Depositions is one of the most common methods of discovery. It helps discover what a person will say at the trial, and it can also be used to record a testimony from a person who can not appear during the trial. In the latter case, the disposition material will be re-read into evidence during the trial.
In most of the states, either of the parties have the right to take the depositions of the other party and of any witness. Also, both sides are entitled to be present during oral depositions.
If your testimony is not the same during the deposition as during the trial, you can expect the opposing side to use this difference to discredit your testimony.
Interrogatories
Either party may submit written questions called interrogatories. Interrogatories are written questions you must answer in writing under oath. The written questions are sent to your legal representative and you must answer them, in writing and under under oath, within a certain time frame. You might for instance be asked about timelines, decisions, policies, or who was involved in a specific situation. Precision matters. Vague or incorrect answers can be used against you.
Requests for Production (RFPs)
This is where you’re asked to provide documents, emails, internal notes, logs, or files related to a claim. That includes physical and digital files, even if you thought they were deleted.
Digital Discovery (E-Discovery)
This is where modern discovery gets real. It’s not just about PDFs and Word docs anymore. Now it’s also about things such as emails and attachments, metadata (timestamps, edits, who viewed what and when), chat logs (Slack, Teams, WhatsApp, etc), cloud storage records, deleted file recovery, web browser histories, and access logs – just to mention a few things that can come into play. If it lives on a device or server, it can potentially be pulled into a case. That’s why data retention policies and communication hygiene matter more than ever.
Inspections and Examinations
A party may require the other side to submit to a physical examination, e.g. inspection of property and medical examinations (both mental and physical). A party may also demand that a document or similar will be submitted for examination to determine if it is genuine.
Discovery Followed by Pre-trial Conferences
In the United States, it is common for the discovery phase to be followed by one or more pre-trial conferences with lawyers present. Judges can utilize pre-trial conferences for various purposes, and several different types of pre-trial conferences are available in their toolbox.
One example of a common type of pre-trial conference after the discovery phase is the status conference, also known as an early conference. The status conference takes place after all the initial pleadings have been filed, and it serves to help the judge establish a time frame for concluding the other pre-trial activities. In some cases, the judge can even set a tentative trial date after a status trial, since he or she now has a better grasp of how much additional prep time that will be required prior to the trial.
After the status conference, the judge will also know if the case should be referred to a third party before going to trial. In some jurisdictions, certain kinds of disputes must be referred to a third-party before going to trial. A court-annexed attempt at non-trial dispute resolution can for instance be mandatory (depending on the state) for cases under a certain dollar amount. Court-annexed alternative dispute resolution can come in several forms, including mediation and arbitration. Arbitration is like a “mini-trial”, where a third-party will hear arguments and review evidence, before coming to a decision. Agreeing to arbitration can help the parties save time and money, and can also be a way to preserve privacy and avoid publicity. Arbitration is different from mediation, since a mediator does not have the legal power to decide the case – the mediator can only try to help the parties come to an agreement. Depending on state law, the losing party in an arbitration may or may not be entitled to appeal and have the case resolved in the court system instead.
In the United States, it is very common for civil cases to be settled (e.g. through mediation or arbitration) after the discovery phase instead of going to trial, as both sides now have access to the evidence and can make a calculated decision based on this. Having a judge clarify the issues can also help parties reach a settlement.
If a case is not settled at this point, many courts will proceed by setting a time for an issue conference, which is another type of pre-trial conference. It is common for lawyers to attend the issue conference with the judge without any clients present. During the issue conference, the legal representatives will try to come to agreements on facts or points of law, and these agreements are known disputations. By reaching agreements prior to the trial, it is possible to cut down on trial time, since there will be fewer points to argue and prove during the trial.
Why Discovery Can Be Dangerous (Even If You’re Innocent)
You might think: “We’ve got nothing to hide.” That’s great—but it doesn’t mean you’re safe. Discovery isn’t just about truth; it’s about what can be found, misunderstood, or spun out of context. It is also about resources, a fulfilling your legal duties during discovery can suck a lot of time, energy and money from your organization.
The Cost of Compliance
Legal discovery can be brutally expensive. Gathering, reviewing, and producing documents—including digital ones—can require outside vendors, legal teams, and massive time investments. It’s not unusual for small businesses to end up spending tens of thousands of dollars, or even more, just responding to discovery.
Reputation Risks
Messages taken out of context, sarcastic Slack replies, private conversations—once these are part of discovery, they can be twisted. Even without legal wrongdoing, embarrassing or careless communication can harm your reputation, especially if leaked or quoted in public records.
Leverage and Pressure
Discovery can also be used strategically. One side may issue massive requests to overwhelm the other, hoping to force a settlement. This happens more than you think. And if you’re not prepared, the pressure to comply or defend every piece of data can quickly push you into a corner—even if you’ve done nothing wrong.
Examples of Everyday Activities That Can Make You a Legal Target (Without Realizing It)
Most business owners and employees don’t set out to do anything wrong—but legal trouble doesn’t always start with wrongdoing. Sometimes, all it takes is a sloppy message, a vague contract, or a forgotten backup to put your business in a tough spot. The truth is, the things you do every day—emails, messages, shared files—can become legal landmines during discovery. Here’s how that happens.
Internal Emails and Slack Messages Can Come Back to Haunt You
Inside jokes, quick reactions, and casual language are all normal at work. But when they’re pulled into a lawsuit and read out of context, they can look incredibly damaging. Legal discovery doesn’t care about your tone or intent—only what’s written. That Slack message where someone joked, “We’ll just ignore that for now,” or an email where a decision was casually made without proper documentation? In court, it might look like negligence or bad faith. Even worse, people assume their internal communication is private. It’s not. If it exists, and it’s relevant to a legal dispute, it can be requested and used against you. That’s true whether it’s in a company email, a team chat, or a DM on your workplace collaboration tool. The lesson? Write everything as if it could be read aloud in a courtroom someday. That doesn’t mean you need to sound like a robot—just avoid being reckless or too casual when dealing with anything even remotely sensitive.
Data You Didn’t Know You Were Keeping
One of the most common traps in legal discovery is data you thought was gone—but isn’t. Cloud services, collaboration tools, and modern file systems automatically store things you didn’t mean to save. Auto-backups. Cloud syncs. Email drafts. Document revisions. Even edits made on Google Docs are logged. That “rough draft” with questionable wording? Still there. That deleted email? It’s in the archive.
Many businesses still let employees use personal devices for work—phones, tablets, laptops. Known as BYOD (bring your own device), this can create legal chaos. Why? Because if a lawsuit happens and there’s work-related communication on a personal phone, the entire device could become part of discovery. That means someone might have to hand over their phone or open it up to data collection—whether they want to or not.
Data storage is not just a privacy issue—it’s a control issue. If you don’t know what’s being stored, where, or by whom, you can’t confidently respond to legal demands.
Vendor and Contractor Communication Traps
Even if you run a tight ship internally, your outside partners can expose you. Many small businesses rely on freelancers, contractors, and third-party vendors for everything from marketing to customer service. But unless your contracts are clear, you might be legally responsible for what they say, do, or store.
If a vendor stores data on your behalf—emails, customer logs, call recordings—it could become your problem in court. If a contractor makes a casual comment in an email chain, it might be treated as part of your company’s position.
Many shared platforms, like project management tools or CRM systems, also store years of communication history by default. Without regular cleanup or access control, these tools become discovery gold mines for anyone filing a lawsuit.
The biggest danger? Not knowing what’s out there. If you haven’t reviewed your vendor agreements lately—or don’t have any at all—you might be shocked by what you’ve legally exposed your business to.
Unconventional Strategies to Minimize Discovery Risk
Most businesses think that avoiding legal trouble means staying ethical and keeping good records. And while that’s a solid start, it’s only half the story. In legal discovery, the volume, tone, and even the formatting of your everyday communication can become a weapon used against you. It’s not just about what you say—it’s how it reads years later, out of context, in a courtroom. Minimizing discovery risk isn’t about hiding wrongdoing—it’s about being intentional, clear, and strategic with how you work. These unconventional tactics can reduce your exposure and help you avoid being caught off-guard by your own data.
Discovery Hygiene
You’ve probably been told to document everything. That’s great advice—until it isn’t. In discovery, there’s a fine line between transparency and overexposure. If your team habitually over-documents sensitive decisions—especially in Slack threads, long email chains, or scattered Google Docs—you’re creating more digital “landmines” than you realize. Every side comment, every missworded sentence, every joke can be taken out of context later.
So start building a culture that values clarity over casualness. That doesn’t mean being paranoid or overly formal—it just means not dumping raw opinions, half-baked ideas, or sarcasm into digital channels that stick around forever.
Instead of discussing sensitive issues over chat, consider:
- Having live meetings (with minimal notes, when appropriate)
- Using more secure, purpose-built platforms for high-risk topics
- Assigning ownership to final communications so they’re deliberate and traceable
Smart Document Retention vs. Over-Retention
Some companies think that saving everything is safer. It’s not. In discovery, you’re required to hand over what you still have, even if it’s outdated, unhelpful, or incomplete. That means keeping unnecessary files actually increases your risk. The smarter approach is to retain only what you need—and let the rest go, defensibly. That’s where document retention policies come in.
A good policy:
- Defines how long different types of records are kept
- Includes automated deletion for non-critical data
- Is applied consistently across platforms and teams
- Can be explained in court, if challenged
This isn’t about deleting evidence. It’s about reducing the clutter that could become a liability down the road. Think of it as decluttering your legal risk profile.
Communicating with Discovery in Mind
You don’t have to write like a lawyer. But you should write like someone who knows their messages might be read aloud in the court room one day or quoted in the press.
Here are a few suggestions:
- Avoid sarcasm or ambiguity when discussing important decisions
- Label documents clearly, especially drafts, to signal they are not final
- Use phrases like “internal use only” or “preliminary draft – subject to review” so a reader knows the context
- Refrain from speculation or “what-if” scenarios in writing, especially if they involve sensitive topics
This simple shift in communication style doesn’t add much extra work—it just makes your words less likely to be misread or weaponized in the future.
Building Legal Discovery Awareness into Your Business Culture
Legal discovery isn’t just a legal department problem—it’s a business-wide risk that starts with how your team communicates and operates on a daily basis. Most organizations think about discovery too late, after the subpoena hits or the lawsuit lands. But by then, it’s cleanup mode. The real win is in building a workplace culture that understands discovery and treats documentation as a strategic asset—not a liability.
Train Like You’re Preparing for a Lawsuit
It might sound dramatic, but a little mock trial training goes a long way. Your leadership team, HR, project managers, and anyone who documents decisions should know what discovery looks like—and more importantly, what it feels like. Running mock discovery sessions or internal audits is one of the fastest ways to shift perspective. Pick a recent internal conflict or policy change and walk through how it would look if it were subpoenaed. Ask:
- What emails would be pulled?
- How would Slack threads be interpreted?
- What’s the paper trail for the decision?
This kind of training demystifies the discovery process and teaches staff to spot red flags in real-time. You’re not teaching people to be paranoid—you’re showing them how a casual comment today could be used out of context tomorrow. That awareness alone can transform how teams document sensitive topics.
Work With Legal Before You Need Legal
Most businesses only bring in legal after something breaks. That’s backwards. If you want to reduce discovery risk, your legal advisors should be part of your operations, not just your damage control.
Start with a pre-litigation audit:
- What data are you storing (and where)?
- Do you have a retention policy?
- Can you find old communications quickly if asked?
- Are vendor contracts discovery-ready?
Then go a step further and build a Discovery Response Plan. This isn’t just for big corporations. Even small businesses can map out who’s responsible if discovery hits—who handles data pulls, who talks to outside counsel, how to avoid accidental deletion, and what platforms need to be searched. This plan becomes your fire drill for legal exposure, making sure you’re not scrambling under pressure if and when legal notices show up.
Documenting with Purpose, Not Paranoia
There’s a balance between documenting nothing (which makes you look evasive) and documenting everything (which creates unnecessary exposure). The sweet spot is documenting with purpose.
Encourage your team to ask:
- Does this document support a key business decision or compliance requirement?
- Would this help us if we needed to explain our actions later?
- Is this something we can confidently defend?
If the answer’s no, it probably doesn’t need to live forever.
Also, use tools that track context and decisions. Platforms that show version history, timestamps, and decision makers can actually help during discovery. They show how your team came to a conclusion—not just the end result. That kind of transparency, done right, can help you.
Reducing Legal Discovery Risk
Legal discovery isn’t some distant legal process that only happens to big corporations under fire. It’s already in motion—in every email you send, every document you store, and every system your team touches. The difference between being blindsided and being protected isn’t luck. It’s awareness.
The good news? A lot of discovery risk is preventable, and you don’t need a law degree or a corporate legal team to start reducing your exposure. You just need to change how you think about communication, documentation, and data.
You don’t need a six-month overhaul to tighten up your legal defenses. Just start here:
- Audit your current communication channels.
What platforms are your teams using—officially and unofficially? Look for shadow systems like WhatsApp groups, personal emails, or old project management tools that still store sensitive info. Consolidate where you can, and set clear rules around what channels are approved for what types of communication. - Set up document deletion timelines.
If you don’t have a document retention policy, now’s the time. Decide what’s worth keeping, what isn’t, and how long it should live. Use automation where possible. The goal is defensible deletion, not reckless purging. - Train your team with a discovery-aware mindset
Even a short session on what legal discovery looks like can open eyes. Teach your staff how written words might be interpreted out of context, and how to avoid writing themselves into a future lawsuit. Frame it as professional communication, not legal paranoia.
Where to Go from Here
If your business is growing, dealing with sensitive topics, or working in a regulated industry, it’s smart to bring in a legal advisor to walk through discovery planning. You don’t need a full-time in-house counsel—many firms offer affordable audits or policy setup packages that can save you thousands (or more) if a dispute ever lands on your desk.
Also consider investing in:
- Compliance-friendly communication platforms with retention controls
- Document management systems that track revisions and control access
- Cloud storage tools with built-in deletion policies and audit trails
You’re not aiming to hide anything—you’re aiming to make sure what you do have is clear, accurate, and defensible.
FAQ
What is RPD?
The acronym RPD stands for Requests for Production of Documents.
Example: We are in discovery right now, so be prepared to hand that chat log over if they issue an RPD.
What are “rogs”?
“Rogs” is an informal term used for interrogatories.
What is Requests for Admissions?
Requests for Admissions seek to get a party to admit some wrongdoing or the accuracy of a particular statement of fact.
With a request for admission, one party can simply ask the opposing party to admit or deny a certain part of their claim. Using requests for admission can help narrow down the issues for discovery and trial, thereby saving time and energy, and making the case more clear.
What is Oral Discovery?
Oral discovery is an umbrella term for discoveries by speech, such as depositions. They can be in person or over the phone, depending on state regulations.
The opposite is written discovery, e.g. interrogatories, documents, and written admissions.