Discovery (law)

In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production of documents, and depositions.

Civil Discovery in the United States

Under the law of the United States, civil discovery is wide-ranging and can involve any material which is relevant to the case except information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. (Criminal discovery rules may differ from those discussed here.) Electronic discovery or "e-discovery" is used when the material is stored on electronic media.

In practice, most civil cases in the United States are settled after discovery. After discovery, both sides often are in agreement about the relative strength and weaknesses of each side's case and this often results in a settlement which eliminates the expense and risks of a trial.

At the federal level

Discovery in the United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" [1]. This chapter consists of rules 26 to 37, which are further described below:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

[2] The most substantial rule, which guides the discovery process.

Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).

Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.

However, there are limits to discovery. §2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in §3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e.g., a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. §4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. §5 generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient, etc.), and requires the production of a "privilege log" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.

Subdivision (c) provides for protective orders.

Subdivision (d) specifies the times at which parties may employ the various methods of discovery.

Subdivision (e) provides for supplementation, which requires a person to correct any submitted information as it is necessary. For example, if you submit your medical records, and then your doctor calls you to say a crucial medical test just came in, you may be required to send that new report to the other party without being specifically requested to do so. Subdivision (f) provides a special meeting between the parties to organize their discovery process; this is a required step. Subdivision (g) is the good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party.

Rule 27. Depositions Before Action or Pending Appeal

[3] Guides depositions taken before the suit begins or after the trial ends.

Rule 28. Persons Before Whom Depositions May Be Taken

[4] Further regulates basic requirements of a deposition, e.g. a court reporter must be present. Depositions are considered an expensive method of discovery in part because of these official requirements.

Rule 29. Stipulations Regarding Discovery Procedure

[5] Miscellaneous information.

Rule 30. Deposition Upon Oral Examination

[6] Main deposition rule in regard to actual procedure. Limits depositions to only one day of questioning, for seven hours during that one day. Any more must be approved by court order or stipulation of the parties involved. Rule also provides for times when an attorney may intervene and direct his client not to answer the question. An attorney is restricted in objecting to only three factors: 1) To preserve a privilege, 2) preserve a court order, or 3) to prevent any harassing questions.

Rule 31. Depositions Upon Written Questions

[7] A rarely used, borderline obsolete method of deposition by sending a court reporter with a written list of questions to a witness. The reporter, not an attorney, questions the witness. This rule is really a combination of a deposition with an interrogatory. Used in rare situations such as deposing someone in difficult to find places such as remote locations or prisons.

Rule 32. Use of Depositions in Court Proceedings

[8] How the deposition can be used in court. Usually testimony in court is preferred, but if a witness dies or flees the country before trial, a deposition may be read into the record.

Rule 33. Interrogatories to Parties

[9] Governs Interrogatories, which are written questions to an opposing party. Limited to twenty-five questions without special court order. May be completed by counsel, not the party himself; because of that, of limited use in most cases. (interrogatories are for use on PARTIES only)

Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

Main article: Request for production

[10] In some cases, a party may simply allow free access to enter its property and inspect its documents as it sees fit. For example, plaintiff requests some files which are part of a massive collection the defendant did not organize well. Defendant simply lets the plaintiff rummage through, placing the burden on the other party. In practice this rule is rarely used as it requires a party to give up control of their information and is therefore too risky for most lawyers. However it is a method of avoiding time and cost in responding to broad discovery requests. May also be used for land inspection in certain cases, e.g. so a plaintiff may enter the defendant's land to inspect a defective feature.

Rule 35. Physical and Mental Examination of Persons

[11] Regulates physicals and psychological evaluations of parties (e.g. Suing for health damages for asbestos, the defendant may require you to see their own doctor (usually only with a court order)).

Rule 36. Requests for Admissions

Main article: Request for admissions

[12] Allows parties to simply ask the opposing party to admit or deny a certain part of their claim. Helps narrow issues for trial and discovery.

Rule 37. Failure to Make or Cooperate in Discovery; Sanctions

[13] In case a party does not respond to a discovery request, this rule allows sanctions to be placed upon them. In objecting to a discovery request as proclaimed (see rule 26(b)(2)) a party must write back to the other party their reasons for not answering. Both parties are then required to confer in good faith to reach an agreement. Failure to do so can result in fines for the offending party. Failing an agreement, the original party requesting the information must then petition the court for an order to force the other party to answer. Should the other party still refuse to answer, it may be fined, have its evidence prevented from being admitted, or have its claim dismissed partially or entirely.

At the state level

Many states have adopted discovery procedures based on the federal system; some closely adhere to the federal model, others not so closely. Some states take an entirely different approach to discovery.

California

In California state courts, discovery is governed by the Civil Discovery Act of 1986 (Title 4 (Sections 2016-2036) of the Code of Civil Procedure), as subsequently amended. A significant number of appellate court decisions have interpreted and construed the provisions of the Act.

California discovery requests are not continuing: the responding party only needs to respond with the facts as known on the date of the response, and is under no obligation to update its responses as new facts become known. This causes many parties to reserve one or two interrogatories until the closing days of discovery, when they ask if any of the previous responses to discovery have changed, and then ask what the changes are. California depositions are not limited to one day. A party may only propound thirty-five written interrogatories on any other single party, and no "subparts, or a compound, conjunctive, or disjunctive question" may be included in an interrogatory; however, "form interrogatories" which have been approved by the state Judicial Council do not count toward this limit. In addition, no "preface or instruction" may be included in the interrogatories unless it has been approved by the Judicial Council; in practice, this means that the only instructions permissible with interrogatories are the ones provided with the form interrogatories.

District of Columbia

The District of Columbia follows the federal rules, with a few exceptions. Some deadlines are different, and litigants may only resort to the D.C. Superior Court. Thirty-five interrogatories, including parts and sub-parts, may be propounded by one party on any other party. There is no requirement for a "privilege log": federal Rule 26(b)(5) was not adopted by the D.C. Superior Court.

Criticism of American discovery

The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other's financial resources in a war of attrition. For example, one can make information requests, which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on. In a scathing critique of the American legal profession, attorney and writer Cameron Stracher described a variety of unpleasant tactics common in the United States, and concluded:

With the noble sentiment of "levelling the playing field" so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. "Discovery" is anything but ... Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal.

Tort reform supporters argue that such tactics are often used by plaintiffs' lawyers to impose costs on defendants to force settlements in unmeritorious cases to avoid the cost of discovery. Victim's rights advocates, on the other hand, believe that the opposite is true: defendants typically have greater resources than plaintiffs and, accordingly, they impose costs on parties deserving compensation by dragging out the litigation process as opposed to offering a fair settlement.

Dictionary definition

Black's Law Dictionary (2004, 8th edition) also states that discovery is:

1. The act or process of finding or learning something that was previously unknown <after making the discovery, the inventor immediately applied for a patent>.

2. Compulsory disclosure, at a party's request, of information that relates to the litigation <the plaintiff filed a motion to compel discovery>. The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production. Although discovery typically comes from parties, courts also allow limited discovery from nonparties.

3. The facts or documents enclosed <the new associate spent all her time reviewing discovery>.

UK Discovery

The same process in Britain is commonly known as disclosure, and is always used in complex civil litigation. As in the USA, certain documents are privileged, such as letters between solicitors and experts. Full details are given in Legal professional privilege (England & Wales).

See also

• Electronic Discovery
• Second request
• subpoena ad testificandum
• subpoena duces tecum

External links

• E-discovery Articles
• Litigation Support Vendors Association
• Litigation Support Technical Standards
• Discovery Resources
• Federal Rules of Civil Procedure: Depositions and Discovery
• Technology Counsel
• Electronic Evidence & e-Discovery Forum, London
• The Sedona Conference