Paralegal Essentials – Discovery (Disadvantages)

While discovery has many advantages in the litigation process, it is not without its drawbacks.  First of all, many of the discovery devices result in considerable cost for the client.  For example, a 3-hour deposition may cost well over $1,000 when you consider the cost of the transcript and the attorney’s time.  In addition, a subpoena for documents could be several hundred dollars for just a couple of years of bank statements when you factor in research time, copies and other fees charged by financial institutions.  In my experience practicing law, often clients don’t want to spend the money to do the discovery beyond the basic devices like interrogatories and demands for production.  It is just too costly.

Another disadvantage of discovery is the lack of court oversight.  Without the court’s involvement, some lawyers and their clients will abuse or try to over-reach the bounds of discovery.  Sometimes they will use discovery to harass, oppress or annoy the other side because they can.   Only by filing a motion can a party protect against abuse and over-reaching.  Motions are expensive and the outcome cannot be guaranteed.

Discovery can educate the others.  In fact, that is one of the goals.  Discovery is designed to make the playing field level, taking away any advantage of surprise at time of trial.  It is a double-edged sword to be sure.

Finally, discovery can alienate the parties even more than they already are.  This can result in slowing efforts to settle the litigation.

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