Discovery: Depositions, Experts & Disputes

Written discovery (interrogatories, RFPs, and RFAs) happens on paper. The next phase brings people into the room. Depositions, expert reports, and the disputes that arise when the other side doesn't cooperate are where discovery gets expensive — and where cases are often won or lost.

Depositions ("Depos")

What they are: A deposition is live, sworn testimony given outside the courtroom — typically in a conference room at a law office. A court reporter records every word. The other side's attorney asks you questions, and you answer under oath, just as you would at trial. Your attorney is present and can object to questions, but in most cases you still have to answer (the objection is preserved for the judge to rule on later).

How they work:

• You are placed under oath by the court reporter
• The opposing attorney asks questions — there is no time limit per question, and the scope is broad
• Your attorney can object for the record, but generally cannot instruct you not to answer (except for privilege)
• Under Pa.R.C.P. 4017.1, depositions may be videotaped — and video depositions can be played for the jury at trial
• A typical deposition lasts 2–6 hours, though complex cases can go longer
• After the deposition, you receive a written transcript. You have the right to review it and note any corrections on an errata sheet. But corrections that change the substance of your testimony will be highlighted by the other side at trial

What you need to know:

• Listen to the question. Answer only what was asked. Do not volunteer. Do not explain. If the question calls for a yes or no, give a yes or no.
• "I don't recall" is a legitimate answer — if it's true. But if you say you don't recall something at your deposition and then suddenly remember it at trial, your credibility is destroyed.
• You cannot "un-say" something. Everything is on the record. If you say something damaging, it will be read back to you at trial in front of the jury.
• Take your time. There is no rush. Pause before answering. Make sure you understand the question. If you don't understand it, say so.
• Don't argue with the attorney. Their job is to get information — and sometimes to provoke you. Stay calm, stay short, stay honest.

Subpoenas: Getting Information from Non-Parties

Discovery isn't limited to the parties in the lawsuit. If a third party (someone not involved in the case) has relevant documents or information, either side can issue a subpoena to compel their cooperation:

• Subpoena to Attend and Testify: Requires a non-party witness to appear at a deposition or trial and give testimony under oath
• Subpoena Duces Tecum: Requires a non-party to produce documents — bank records from a financial institution, medical records from a hospital, employment records from an employer, phone records from a carrier, and so on

Non-parties who receive a subpoena must comply or file a motion to quash. Ignoring a subpoena can result in contempt of court.

Independent Medical Examinations ("IMEs")

In cases involving personal injury, the defendant can request — and the court can order — that you submit to a medical examination by a doctor of the defendant's choosing (Pa.R.C.P. 4010). Despite the name "independent," these doctors are typically selected and paid by the defense or their insurance company. You have the right to have your attorney present, and the right to obtain a copy of the doctor's report.

Expert Discovery

In many cases, each side retains expert witnesses — doctors in injury cases, engineers in construction disputes, accountants in business cases, appraisers in real estate matters. Under Pa.R.C.P. 4003.5, you must disclose the identity of your expert witnesses and may be required to produce their reports. Experts can be deposed by the other side. Expert fees are significant — $300–$600+ per hour — and are a major driver of litigation cost.

Discovery Disputes & Sanctions (Pa.R.C.P. 4019)

When one side refuses to cooperate in discovery, the other can file a motion to compel. If the court orders compliance and the party still refuses, the consequences escalate rapidly:

• Attorney fees and costs: The refusing party pays the other side's attorney fees for the motion
• Facts deemed established: The court can rule that certain facts are established as true — even if the refusing party disputes them
• Claims or defenses stricken: The court can strike the refusing party's complaint or answer
• Default judgment: In extreme cases, the court can enter judgment against the refusing party entirely
• Contempt of court: Including fines and, in extreme cases, imprisonment

Discovery abuse — hiding documents, giving evasive answers, coaching witnesses — is taken seriously by Pennsylvania courts. But enforcement requires motion practice, which means more time and more attorney fees. This is part of the hidden cost of litigation.

The Cost of Discovery — Why Litigation Is Expensive

Discovery is where most of the money goes in a lawsuit. Here's why:

• Document review: In a business dispute, there may be thousands of emails, contracts, and financial records to collect, review, and produce. Every hour of attorney review is billed.
• Depositions: A single deposition can cost $1,500–$5,000+ when you factor in attorney preparation time, the deposition itself (typically half a day), and the court reporter's transcript fee ($3–$6 per page)
• Experts: Retaining an expert, reviewing their report, and preparing them for deposition can easily run $10,000–$30,000+
• Electronic discovery (e-discovery): Collecting, processing, and reviewing electronic data can be enormously expensive in cases with large volumes of email or electronic records

This is why we always discuss litigation costs honestly at the outset. If your case involves $25,000 in dispute and discovery alone will cost $15,000, you need to know that before you file.