What Is Discovery? A Lexington Attorney’s Guide to the Discovery Process

Deep Dive into Discovery 

Discovery is a term often tossed around in the world of litigation, but most people don’t actually know what the discovery process means or entails. When deciding to pursue litigation, your case is very likely to get to the discovery stage, which is the most important stage for fact investigation and uncovering relevant information. 

Discovery is the formal process of exchanging information between the parties regarding the witnesses and evidence they plan to use at trial. Even if the case does not end up going to trial, discovery is essential in uncovering the strengths and weaknesses of both parties' claims and defenses, allowing parties to make informed decisions about what to do next in the case. Working with a Lexington attorney during this stage can help you understand your discovery obligations and how the information uncovered may affect your case.

Looking for an experienced attorney Lexington KY deserves? Learn more about the discovery process and how the lawyers at EMWN Law can help.

What is Discovery?

Discovery is the process of parties in a case enhancing information about the case to each other. The primary purpose of discovery is to prepare parties for the claims and defenses that each other will pursue at trial. However, discovery also promotes transparency between the parties and helps to facilitate pre-trial resolutions of a case when the parties become aware of each other’s true strengths and weaknesses. 

A successful discovery will uncover the facts in such a way that allows the parties to make an informed decision about their next steps going forward and what their best option for resolution will be, whether that is trial, settlement, mediation, or some other dispute resolution. A Lexington attorney can help evaluate the information uncovered during discovery and determine how it may influence these decisions. 

Throughout the discovery process, depending on facts or evidence that come to light, parties can also file dispositive motions for the judge to conclude and resolve the case in their favor. A dispositive motion is one that asks the judge to decide and end all or some parts of the lawsuit and often include motions to dismiss and motions for summary judgment. 

What Information is Included in Discovery?

Under Kentucky law, the scope of discovery includes any non-privileged matter that is relevant to the subject matter of the case and related to either party’s claims or defenses. Privileged matters are documents or communications that the holder has the right to refuse to make public. 

That means that a court or your opposing party cannot compel you to reveal these privileged matters. Communications are often privileged when the nature of the relationship makes information shared between the parties legally protected. Because questions about privilege can become complicated, a Lexington attorney can help determine what information may need to be disclosed and what may be protected.

The most well-known privilege is the attorney-client privilege, which protects all confidential communications between an attorney and client designed to facilitate legal representation. Another doctrine, called the work product privilege, protects all materials and documents prepared in anticipation of litigation. 

For example, when a company becomes aware that an HR incident has occurred at the workplace and begins to make write-ups and reports because the person has threatened to sue, they are preparing documents in anticipation of litigation. These reports will likely be protected from being obtained in discovery by the potential opposing party to the suit because of the work product privilege. 

Other common privileges include the marital communications privilege (protects confidential communications made between spouses), spousal testimonial privilege (allows one spouse to refuse to testify against the other), psychotherapist-patient privilege (protects communications made to a licensed therapist for the purpose of diagnosis or treatment), and the Fifth Amendment privilege against self-incrimination. 

How Does the Discovery Process Work?

Discovery is typically the second step in litigation, beginning after initial pleadings. For more details on the entire process of litigation, read EMWN Law’s blog, “What is Litigation.”

After the last responsive pleading, the parties must schedule a discovery conference, where they set boundaries and guidelines for the soon ensuing discovery. Discovery conferences are required by both federal and Kentucky law, and help to regulate what the discovery process and schedule will look like for the parties and to avoid any later misunderstandings once discovery has begun. A Lexington attorney can guide clients through these early discovery requirements and help them prepare for the information and documentation they may need to provide. After that, discovery begins! 

In federal court, the parties are required to exchange initial disclosures at the onset of discovery that reveal the parties’ witnesses, documents that support their claims and defenses, and damages. However, Kentucky law does not have a comparable rule for initial disclosures. There are several methods of discovery that parties may utilize all or some of:

Interrogatories are just a list of formal, written questions that one party sends to another. These interrogatories may ask personal questions, incident-specific questions, business backgrounds, relationship history, details about damages, and more! Remember, if it is within the scope of discovery, the parties are allowed to inquire about it! The answering party can admit, deny, or state that they do not know the answer to the question they’ve been asked. The point of interrogatories is to uncover information about the relevant facts, persons, witnesses, or corporations involved in the suit. 

Requests for production of documents, things, or land are formal written requests to inspect physical evidence that is in the possession or control of the other party. This typically includes physical or electronic documents and any other tangible evidence that is relevant to the requesting party’s claims or defenses that they wish to inspect. Additionally, the requesting party may request permitted entry onto the other party’s land to inspect, measure, survey, test, photograph, or sample the land. The answering party can either permit or deny production and inspection. The requesting party is not able to hold onto or keep the other party’s things forever though, they must return it! 

Requests for admission are formal written requests for the other party to admit or deny the truth of a statement. This can be about facts, opinions, or the application of law to a fact. So for example, a party could submit a request for admission saying, “is it true that you were unlawfully living at a property that you were not and never have been a tenant of on 123 Squatters Rd from June 8, 2029 to July 8, 2026 in violation of KRS 383.290(2)(a)?” 

Requests for admission, along with the other methods of discovery, are very important in the discovery process because they can confirm or deny key components of parties’ claims and defenses, opening the door for pre-trial resolution. If a party admits to making a mistake or doing something that was a key issue of fact for the case, the other party may then be able to successfully file a dispositive motion that will resolve and end the case before needing to go to trial. 

Another key feature of requests for admission are the time restrictions–if a party does not answer all or part of the requests for admission, those statements are for all purposes deemed admitted, which can be detrimental to that party. Having a Lexington attorney assist with discovery responses can help ensure these important requests are addressed carefully and within applicable deadlines.

Depositions are one of the most well-known discovery tools to obtain information, involving out-of-court, sworn testimony by a witness. Depositions can be either written or oral, but in Kentucky, depositions are taken by oral testimony that can last for several days. Both parties may ask the witness questions during depositions, similar to the structure of a trial. However, witness’s answers during depositions are typically not admissible at trial. Depositions help to learn more about a witness and their credibility before trial and to avoid any surprise testimony at trial. 

Mental and physical examinations may be requested by a party when a witness’s mental or physical health is in controversy. The requesting party must file a motion for good cause in order to show that there is a controversy. The requesting party will choose the doctor to conduct the examination after the motion has been approved by the court. Mental and physical examinations are very helpful in instances where a party’s mental or physical health makes or breaks the suit, such as personal injury, medical malpractice or competency. 

Talk to a Lexington Attorney About the Discovery Process

The discovery process is typically the lengthiest part of a lawsuit, lasting anywhere from six months to multiple years. It is the only way that the parties can be sure to uncover all of the facts and information involved in the case and can be an extremely helpful tool to resolving a lawsuit. It is very important for a trusted Lexington KY lawyer to assist you with all of your discovery questions and needs. An experienced Lexington attorney can help you navigate each stage of discovery and understand how the evidence uncovered may shape the direction of your case.

Contact Lexington attorneys at EMWN for more information!