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In most business litigation lawsuits, the most important part of the case is the discovery period. Basically, discovery is the process by which each side learns, or “discovers” information about the other side’s case. During the discovery period, the Plaintiff (the party bringing the suit) will try to obtain documents and testimony tending to prove that the plaintiff should win the case. In contrast, the Defendant (the party defending the lawsuit) will seek documents and testimony showing that the defendant has a valid defense to the suit. Discovery often determines the outcome of the case, because it usually reveals the strengths and weaknesses of both the Plaintiff’s claim and the Defendant’s defense.

In business litigation cases, the discovery process normally begins after the Plaintiff has filed suit and the Defendant has responded with an answer. The first step is written discovery, where each side makes formal written requests to the other side for information. There are four basic types of written discovery:

  • Requests for Disclosure: One party to a suit asks the other to provide basic information about the case, such as the basis for party’s claim or defense, amount of damages, persons with knowledge of facts related to the case, and identification of expert witnesses.
  • Interrogatories: Each side may ask the other to answer in writing and under oath twenty-five (25) written questions about the case.
  • Requests for Production: Each side may ask the other side to produce specific documents or categories of documents related to the case.
  • Request for Admissions: Each side can ask the other to admit or deny the truth of certain statements. This discovery request is designed to limit the scope of the case by determining which facts are in dispute and which are not.

Under Texas law, each side has thirty (30) days to respond to written discovery requests, although attorneys can and often do agree to allow each other more time to respond.

The other type of discovery in a business litigation case is the deposition. A deposition is a formal questioning of a witness under oath, and in front of a court reporter who prepares a transcript of what the witness says. In most cases, attorneys for each side will depose the other party, expert witnesses employed by the other party, and any other witness having knowledge of important facts related to the case.

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