This is part 3 of our 5 part series. The “discovery” process is the longest part of any lawsuit and can sometimes take up to 1 year to complete. It is called “discovery” because generally each side is “discovering” what the other side knows about the case by asking questions and requesting documents. The employee, generally, does not have as many documents as the employer who keeps the personnel file and the other HR related documents. Normally, the large part of discovery is the employee requesting copies of the documents from the employer, reviewing them, and trying to figure out how each document fits into the case. Employers are required to produce the documents and cannot destroy them or they could be sanctioned by a court. Emails must also be produced if they are relevant to the case.
Discovery also includes the taking of depositions. The employee is almost always deposed by the employer’s attorney. What this means is the employee must come to the employer’s attorney’s office, generally for a day, and sit down and answer questions under oath just like if you were at trial. The answers are recorded by a court reporter and the employee is bound to their answers. The employee will have their own attorney present with them. The employee also has the right to take depositions of key witnesses, coworkers, supervisors, and managers in the same way. The answers to questions derived during depositions can serve as key evidence for later in the case. Without depositions, it is difficult for either side to build a case. Many times employees are nervous before their deposition is taken. This is a natural reaction. However, good preparation with your attorney will go far. Once discovery is over, the case will move into the next stage, the summary judgment (or “mini-trial”) phase, which will be discussed in Part 4.
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