Discovery (law)

This article is about pre-trial phase of a lawsuit. For about the discovery of land under public international law, see Discovery Doctrine.

In American 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 and can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production of documents, and depositions.

In other words, discovery includes (1) interrogatories; (2) motions or requests for production of documents; (3) requests for admissions; and (4) depositions.

Civil discovery in the United States

Main article: Civil discovery under United States federal law

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].

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.

Discovery in the United Kingdom

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
• Early case assessment

External links

• Federal Rules of Civil Procedure: Depositions and Discovery