How Pre-Litigation Discovery Can Help Identify the Right Defendant

Last year, my wife was biking near the Flatiron Building when a man recklessly pulled a Citibike out of its docking station and stepped directly into the bike lane. To avoid him, oncoming pedestrians, and nearby cars, my wife swerved sharply and crashed into the curb and scaffolding. You can probably still see the mark where she hit her head. Thankfully, her injuries were minor. But the man—after briefly looking at her—got on his bike and rode off, even as bystanders tried to chase him down. As the dust settled, one question lingered: if her injuries had been serious, who would we have sued?

This is where the legal tool known as pre-litigation discovery becomes critically important.

What Is Pre-Litigation Discovery?

Pre-litigation discovery is a process that allows a potential plaintiff to obtain evidence before filing a lawsuit. Its goal is to identify the right defendant or to preserve key evidence that may be lost over time. Courts can authorize limited discovery—like subpoenas to third parties or depositions—if you can show that it's necessary to establish the identity of a defendant or to support a future claim.

Applying It to Real-Life Scenarios

Imagine if my wife had suffered a traumatic brain injury in that accident. Without a name, photos, or any contact info, we’d have had no clue who was responsible. However, pre-litigation discovery might have opened up avenues:

• Traffic or security camera footage: A motion could compel the city or local businesses to preserve and share video recordings from nearby intersections.

• Business surveillance: Subpoenas could obtain footage from establishments near the Flatiron Building that had exterior cameras.

• Witness identification: A court might authorize subpoenas for phone data or social media posts to identify potential witnesses who were nearby at the time. In many jurisdictions, plaintiffs can issue subpoenas to businesses and other entities that may have relevant information—such as surveillance footage, transaction records, or employee logs—when trying to identify a potential tortfeasor.

  
  

The Legal Framework

While laws vary by jurisdiction, many courts allow for this kind of discovery before filing a complaint—especially if it helps determine whether a valid cause of action exists and who the defendant should be. Courts generally require a showing that the discovery is necessary and narrowly tailored to prevent a mere fishing expedition.

For example, in my wife's case, I might have issued a subpoena to Lyft, who owns and operates the Citi Bike public-private partnership in New York City, and New York's Department of Transportation for transaction records at that bike station within that timeframe to identify the person responsible for my wife's accident.

Why It Matters

For victims of hit-and-run incidents, data breaches, product failures, or other complex scenarios where the wrongdoer isn’t immediately known, pre-litigation discovery can be a lifeline. It transforms uncertainty into strategy, giving plaintiffs the power to act.

Understanding your pre-litigation options might be your first step toward recovery.