Litigation & Dispute Resolution
What Is Discovery in a New York Lawsuit, and Why Does It Cost So Much?
What is discovery and why is it so expensive?
Discovery is the pretrial phase where both sides exchange evidence — documents, written questions, and deposition testimony under oath — before trial. It is expensive because it is labor-intensive: attorneys must review potentially thousands of documents, prepare and take depositions, and often bring in experts, all of which is billed by the hour. In most New York commercial cases, discovery consumes more time and cost than any other phase of the litigation, including trial itself.
What discovery actually consists of
New York discovery, governed by the CPLR, generally includes several tools used together. Document demands require each side to produce relevant documents and electronically stored information — contracts, emails, financial records, text messages. Interrogatories are written questions one side must answer in writing, under oath. Depositions, called Examinations Before Trial (EBTs) in New York practice, involve testimony given under oath in front of a court reporter, with attorneys for both sides present to ask questions. Parties may also serve demands for admissions, asking the other side to admit or deny specific facts, and may need to disclose expert witnesses and the substance of their expected opinions.
Why document review costs so much
Modern businesses generate enormous volumes of email, texts, and electronic records, and virtually all of it is potentially discoverable if relevant to the claims or defenses. Attorneys — or contract reviewers under attorney supervision — have to review this material for relevance and for privilege before it is produced, and review the other side's production once it arrives. This is fundamentally a time-intensive task: a thousand documents does not review itself in an hour, and disputes over what counts as relevant or privileged can require motion practice to resolve, adding further cost.
Why depositions cost so much
Preparing for a deposition — organizing exhibits, anticipating questions, preparing the witness or preparing to question the opposing witness — takes substantial attorney time before the deposition even happens. The deposition itself often runs several hours to a full day, is billed at the attorney's hourly rate, and requires a court reporter, whose transcript fee is a separate cost. A case with several witnesses on each side can accumulate meaningful cost through depositions alone.
Why experts add another layer
Many commercial disputes — involving damages calculations, industry standards, or technical questions — require expert witnesses. Experts charge their own hourly or flat rates for reviewing the case, forming an opinion, writing a report, and sitting for a deposition, and these costs are paid by the party who retains them, separate from attorney's fees.
Disputes about discovery itself add cost
Parties frequently disagree about the scope of discovery — whether a request is overly broad, whether certain documents are privileged, whether a party has produced everything it is required to. These disagreements can require letters, conferences with the court, and sometimes formal motions to compel or for a protective order, each of which adds attorney time on top of the underlying discovery work itself.
Why discovery cost drives settlement decisions
Because discovery is often the single largest cost driver in a commercial case, it factors heavily into settlement timing. Sometimes parties settle early specifically to avoid the cost of full discovery. Other times, discovery reveals information — strong or weak — that changes how each side values the case, which is part of why settlement often happens after discovery has progressed rather than before it starts.
Can discovery cost be managed?
To some extent. Narrowing the scope of claims, being organized and responsive rather than obstructive, and having realistic conversations early about what documents exist and what a case is actually worth can all reduce cost. Discovery cannot generally be skipped in a contested case, but how efficiently it is conducted has a real effect on the total bill.
When it is worth a call
- You are facing a discovery demand and are not sure what you are required to produce
- You are evaluating whether to file or defend a lawsuit and want to understand the discovery cost involved before committing
- You believe the other side is not producing documents they are required to produce
Common questions
- Can I avoid discovery by settling early?
- You can settle at any point, including before discovery begins, and doing so avoids that cost entirely. Whether early settlement makes sense depends on how confident each side is in their position and how much they know about the facts before discovery — sometimes that is enough to settle, sometimes it is not.
- Do I have to turn over everything the other side asks for?
- No — discovery requests must generally seek relevant, non-privileged material, and objections can be raised to requests that are overbroad or seek privileged information such as attorney-client communications. Disputes over these boundaries are common and sometimes require the court to resolve them.
- What is a deposition actually like?
- It is testimony given under oath, outside of court, in response to questions from the opposing attorney, with your own attorney present and a court reporter creating a written transcript. It can be used later at trial to challenge inconsistent testimony, which is part of why preparation beforehand matters.
- Does every case go through all of these discovery tools?
- No — the scope of discovery is generally proportional to the case. A smaller, simpler dispute might involve a limited document exchange and no depositions at all, while a complex commercial case can involve all of the tools described here across multiple witnesses.
- How is discovery different in the Commercial Division?
- The Commercial Division has its own set of rules intended to keep discovery on a defined schedule and to encourage proportionality between the scope of discovery and what the case is actually worth, though the underlying tools — documents, interrogatories, depositions — are the same as in a standard Supreme Court case.
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