Discovery is the exchange of all documents in a party’s possession, custody or power which are relevant to the issues in dispute in a legal proceeding.
Each party is entitled to know of, and inspect all documents that the other party has, with a few exceptions. The main exception is that a party can’t inspect any documents that contain legal advice the other party has received in relation to the dispute. These documents are referred to as “privileged”.
Discovery is usually given after the parties have each filed their pleadings (an outline of their case) and after a mediation has occurred. Ideally, by the time discovery is due to be given, the issues in the litigation are defined which in turn narrows the field of documents that will need to be discovered by the parties.
When a dispute involves a high volume of documents, the process will take longer and the legal costs associated will be higher. Discovery is often the single largest cost in corporate litigation, and the costs associated with giving discovery can become disproportionate to the amount in dispute.
For this reason, discovery is a milestone in any legal proceeding. Where there is a possibility of resolving a dispute without trial, it is in both parties’ interests to have those discussions prior to the discovery stage so that unnecessary costs can be avoided.
Matters you should consider raising with your lawyer:
- Advocating for early mediation of your dispute (prior to discovery), where appropriate to do so in order to reduce cost; and
- Ensuring you are properly advised on your obligations to give discovery and seek assistance in locating all documents that need to be discovered.