Discovery is the process of finding (discovering) the relevant facts that must be presented to the court. Discovery by set rules is a modern innovation designed to further justice by giving both litigants access to the facts in the case. Discovery is termed a procedural rather than a substantive matter (an ironic use of language, since rules that affect the procedure of the law often have more profound effects than rules that affect the substance of the law). In most civil litigation, and especially in medical malpractice litigation, the majority of the time between the filing of the plaintiff’s complaint and the point at which the case is ready for trial is taken up with discovery proceedings. These proceedings can be time consuming and expensive. A major argument for alternatives to litigation for resolving disputes is avoiding of the cost of discovery.

Discovery is meant to help the parties to find the truth and properly prepare their cases. Discovery rules are very liberal, allowing parties to obtain information that they may not be able to use in court, as long as there is a chance that it will lead to admissible evidence. This does not mean that all the information developed in discovery can be used at trial. The scope of pretrial discovery is much broader than the scope of allowable evidence as defined by the rules of evidence. After the information is obtained through discovery, the judge will make a separate determination on whether it will be allowed into evidence—presented to the jury—at trial.

Discovery may be carried out by directly asking a person questions ( oral depositions), by sending a person written questions ( interrogatories and depositions on written questions), and by requesting that the person provide documents (motions for production, subpoenas duces tecum). The person answering the questions must refuse to answer the questions or swear that the answers provided are correct to the best of his or her knowledge. If it is later determined that the person was lying, he or she may be fined or prosecuted for perjury. If a party to the lawsuit lies, the court has the authority to direct a verdict for the opposing party. Most judges conduct a discovery conference at some point in the pretrial preparation of a case to work out the remaining discovery issues so the case can proceed to trial. Federal judges usually enter discovery orders to control and hasten the discovery process.