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Discovery, in the
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
of
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
jurisdictions, is a pre-trial procedure in a
lawsuit in which each party, through the law of
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...
, can obtain
evidence from the other party or parties by means of discovery devices such as
interrogatories
In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in adv ...
,
requests for production of documents,
requests for admissions and
depositions. Discovery can be obtained from non-parties using
subpoena
A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
s. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a
motion to compel A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a t ...
discovery.
History
Discovery evolved out of a unique feature of early
equitable pleading procedure before the English
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of equ ...
: among various requirements, a plaintiff's bill in equity was required to plead "positions". These were statements of evidence that the plaintiff assumed to exist in support of his pleading and which he believed lay within the knowledge of the defendant. They strongly resembled modern requests for admissions, in that the defendant was required to plead only whether they were true or false. At some point between the reign of
Elizabeth I
Elizabeth I (7 September 153324 March 1603) was List of English monarchs, Queen of England and List of Irish monarchs, Ireland from 17 November 1558 until her death in 1603. Elizabeth was the last of the five House of Tudor monarchs and is ...
(1558-1603) and the late seventeenth century, positions were gradually replaced by
interrogatories
In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in adv ...
: written questions which the defendant was required to truthfully respond to under oath in his answer to the bill, based on information within his own personal knowledge as well as documents in his possession. But back then, interrogatories could only elicit admissible evidence (not the broader modern standard of "reasonably calculated to lead to the discovery of admissible evidence") and could only request evidence in support of the plaintiff's case, not either side's case (that is, they could not ask for evidence which the defendant intended to use in support of his defenses and was otherwise entirely irrelevant to the plaintiff's case). Even worse, this was purely a one-way procedure, because interrogatories could only be pleaded as part of a bill (a pleading ''initiating'' a suit in equity). A defendant who needed to obtain evidence in support of his defenses had to file a cross-bill against the plaintiff to plead his own interrogatories.
[ Available through ]HeinOnline
HeinOnline (HOL) is a commercial internet database service launched in 2000 by William S. Hein & Co., Inc. (WSH Co), a Buffalo, New York publisher specializing in legal materials. The company began in Buffalo, New York, in 1961 and is currently b ...
.
Discovery did not exist at common law, but its availability in equity attracted litigants in actions at law (legal proceedings in the common law courts). They began to file bills in equity to obtain discovery in aid of actions at law. This led to another innovation in the mid-15th century: the bill to perpetuate testimony of a potential witness. This was for witnesses whose advanced age or poor health implied they would not survive to testify at the trial of an action at law.
In this type of proceeding, the parties merely pleaded written interrogatories which were read out loud to the witness in a closed proceeding without parties or counsel present. The witness's attendance was secured by service of a
subpoena ad testificandum
A ''subpoena ad testificandum'' is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle A ...
at least 14 days before the date of the examination. In London, the examinations took place before a
master
Master or masters may refer to:
Ranks or titles
* Ascended master, a term used in the Theosophical religious tradition to refer to spiritually enlightened beings who in past incarnations were ordinary humans
*Grandmaster (chess), National Master ...
or an examiner in
Chancery Lane
Chancery Lane is a one-way street situated in the ward of Farringdon Without in the City of London. It has formed the western boundary of the City since 1994, having previously been divided between the City of Westminster and the London Boro ...
. Outside of London, the parties' attorneys were supposed to jointly stipulate to a group of lay commissioners (typically four, though only two were needed for a quorum) who could not be interested persons (i.e., parties or their lawyers) and were usually
country gentlemen. Once agreed upon, the court would grant them authority to examine witnesses by way of
dedimus potestatem In law, ''dedimus potestatem'' (Latin for "we have given the power") is a writ
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern us ...
.
The person(s) examining the witness would appoint a clerk, who under their supervision would write down the witness's oral answers under oath in summary form on paper as if they had been spontaneously delivered as a single continuous third-person
narrative
A narrative, story, or tale is any account of a series of related events or experiences, whether nonfictional (memoir, biography, news report, documentary, travelogue, etc.) or fictional ( fairy tale, fable, legend, thriller, novel, etc. ...
, rather than as responses given in the first person to discrete questions. In other words, the actual sequence of questions and answers was not transcribed verbatim like a modern deposition.
In London, the witness usually signed or marked the narrative at its end (and occasionally would sign at the bottom of each page), while outside of London, the clerk engrossed the narrative on parchment (in plain English, copied the text from paper to parchment in clearly legible handwriting).
[ Available through SpringerLink.] Either way, the resulting document (paper in or near London, parchment outside London) was filed under seal with the court, and was not revealed or "published" (in the terminology of the time) to parties or counsel until shortly before the trial in which it was to be used.
An 1899 treatise on evidence law explained the rationale for this method of examining a witness in equity: it allowed a witness "ample time" for "calm recollection" as they answered questions read by a neutral person and an opportunity to correct the record at the end before it was submitted to the court as evidence. In contrast, at trial in a common law court, the witness might be subject to "severe and rapid
cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and ...
" without sufficient time for reflection or deliberation, thereby causing them to "misrepresent facts, from infirmity of recollection or mistake".
This procedure for ''ex parte'' out-of-court pretrial examinations under the authority of courts of equity came to be called a "deposition". It continued to be used as an evidence preservation device in aid of actions at law, but it also became the standard method for developing the factual record to be used in courts of equity as derived from the knowledge of third-party witnesses (not merely those who were old or dying). The process of summarizing testimony in narrative form, to be relied upon by the
Lord Chancellor
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
in lieu of live testimony in open court, was a kind of factfinding process in its own right. As implied by the secret nature of the proceedings and the absence of parties and counsel, equity's factfinding process was fundamentally
inquisitorial
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
(i.e., driven by the court), and not
adversarial (i.e., driven by the parties). It is generally believed that this came about because the early Chancellors and the masters who assisted them were clerics with training in
Roman
Roman or Romans most often refers to:
*Rome, the capital city of Italy
*Ancient Rome, Roman civilization from 8th century BC to 5th century AD
*Roman people, the people of ancient Rome
*'' Epistle to the Romans'', shortened to ''Romans'', a lette ...
and
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, and therefore had some knowledge of the inquisitorial system as it functioned in
ecclesiastical courts. The secrecy of the proceedings was thought to be absolutely essential to prevent
perjury
Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
and
witness tampering
Witness tampering is the act of attempting to improperly influence, alter or prevent the testimony of witnesses within criminal or civil proceedings.
Witness tampering and reprisals against witnesses in organized crime cases have been a difficul ...
; the witnesses would thereby be forced to testify from memory alone, and the parties could not use the facts disclosed in testimony to guide their discovery or litigation strategy. Consistent with these inquisitorial views, there were also prohibitions on repeat testimony and on additional testimony after publication. Rather, the witnesses would testify independently of each other before publication, then at the moment of publication, all would be revealed, and the parties would make their arguments to the Chancellor on that cold record. It is this procedure to which the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
was referring in an 1802 law providing that "in all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions."
The next major development (which would remain a unique feature of American and Canadian discovery) occurred under the supervision of Chancellor
James Kent James Kent may refer to:
*James Kent (jurist) (1763–1847), American jurist and legal scholar
* James Kent (composer) (1700–1776), English composer
*James Kent, better known as Perturbator, French electronic/synthwave musician
*James Tyler Kent ...
of the
New York Court of Chancery The New York Court of Chancery was the highest court in the State of New York from 1701 to 1847.
History
The New York Court of Chancery was established during the British colonial administration on August 28, 1701, with the colonial governor actin ...
during the early 19th century. He was trying to respond to the obvious defect of traditional depositions: since parties could not adjust their questions on the fly, they had to propound broadly drawn interrogatories, and in turn elicited "long and complicated accounts" of the facts that were difficult for masters to summarize in writing. Therefore, Kent allowed New York masters to actively engage in oral examination of witnesses (in the sense of formulating questions in real time and narrowing their scope based on the witnesses' answers), and he also allowed parties and counsel to be present when such examinations were conducted. Kent's innovations spread into American federal practice in 1842 when the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
amended the
Federal Equity Rules to allow masters in equity suits in
federal courts to conduct oral examinations of witnesses. However, with the parties and counsel now present to help guide the course of the master's oral examination of the witness, it was inevitable that counsel would insist on taking over the examination itself. Also, their presence meant the proceedings were no longer secret.
Major reforms enacted in New York in the late 1840s and in England in the early 1850s laid the foundation for the rise of modern discovery by imposing a clear separation between pleadings and discovery as distinct phases of procedural law. Discovery devices could now be invoked independently of the pleadings. The New York reforms went much farther, by directly merging common law and equity procedure (which would also happen in England in the early 1870s), and by expressly authorizing pretrial oral examinations of both opposing parties and third-party witnesses, the basis of the modern deposition.
(Up to that point, discovery from able-bodied opposing parties was still limited to interrogatories.) In fact, the New York code of civil procedure (brought about by
David Dudley Field II
David Dudley Field II (February 13, 1805April 13, 1894) was an American lawyer and law reformer who made major contributions to the development of American civil procedure. His greatest accomplishment was engineering the move away from common ...
) went so far as to abolish written interrogatories.
A major flaw, though, of the New York code of civil procedure was that it only allowed parties to seek discovery on issues on which they would have the burden of proof at trial.
This caused lawyers for defendants to plead fictional defenses in answers, because they still could not directly pursue discovery into the plaintiff's claims.
In 1861, Rule 67 of the Federal Equity Rules was amended to make deposition by oral examination the regular method of taking evidence in equity in federal courts; taking witness testimony by written interrogatories was now the exception. Although depositions were still taken in front of court-appointed examiners, their role had been reduced to the preparation of summary narratives to be relied upon as evidence by the court. In 1892, Rule 67 was again amended to require the preparation of an exact transcript. Subsequent amendments in 1893 and 1912 eliminated the deposition's traditional role as an equitable factfinding device by first allowing and then requiring oral testimony in open court in trials of federal suits in equity, thereby reducing the deposition to its modern role in American civil procedure as a discovery and evidence preservation device.
In England, discovery finally became available in the common law courts by the mid-1850s, after
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
enacted the Evidence Act 1851 and the Common Law Procedure Act 1854. The right to discovery in the common law courts was "exercised somewhat more narrowly" than in chancery, but the point was that a litigant at common law no longer needed to file a bill of discovery in chancery just to obtain any discovery.
The
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 (sometimes known as the Judicature Act 1873) was an Act of the Parliament of the United Kingdom in 1873. It reorganised the English court system to establish the High Court and the Court of Appeal, and ...
merged together various trial courts, including the Court of Chancery, to form what is now known as the
High Court of Justice
The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC (Englan ...
. Although discovery by then had been available at common law for almost two decades, the new court generally looked to the older and broader form of discovery in chancery as the basis of its discovery rules.
In 1938, the promulgation of the
Federal Rules of Civil Procedure (FRCP) (pursuant to the
Rules Enabling Act
The Rules Enabling Act (ch. 651, , ) is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure an ...
) created for the first time a comprehensive discovery system in U.S. federal courts.
The FRCP authorized broad discovery into "any matter, not privileged, which is relevant to the subject matter in the pending action, whether relating to the claim or defense of" either party.
Due to the influence of
progressive law professor Edson R. Sunderland, an enthusiastic proponent of broad discovery, the FRCP expressly authorized the complete family of discovery methods familiar to American litigators today.
What made the FRCP so revolutionary was that although many state governments had regularly allowed one or more methods of discovery, no one state nor the federal government had ever attempted to allow litigators to use ''all'' of them, as Sunderland frankly admitted to the Advisory Committee that drafted the FRCP.
As a result, the United States has the broadest discovery system in the world.
After American discovery became the subject of harsh criticism for many decades (as separately summarized below), the United States retreated somewhat from broad discovery in the federal courts by expressly incorporating a proportionality requirement into the scope of discovery in the version of the FRCP that went into effect on December 1, 2015.
Electronic discovery
Electronic discovery, also known as ediscovery, involves the discovery of electronic data and records. It is important that data obtained through ediscovery be reliable, and therefore admissible.
Currently the two main approaches for identifying responsive material on custodian machines are:
(1) where physical access to the organisations network is possible - agents are installed on each custodian machine which push large amounts of data for indexing across the network to one or more servers that have to be attached to the network or
(2) for instances where it is impossible or impractical to attend the physical location of the custodian system - storage devices are attached to custodian machines (or company servers) and then each collection instance is manually deployed.
In relation to the first approach there are several issues:
* In a typical collection process large volumes of data are transmitted across the network for indexing and this impacts normal business operations
* The indexing process is not 100% reliable in finding responsive material
* IT administrators are generally unhappy with the installation of agents on custodian machines
* The number of concurrent custodian machines that can be processed is severely limited due to the network bandwidth required
New technology is able to address problems created by the first approach by running an application entirely in memory on each custodian machine and only pushing responsive data across the network. This process has been patented and embodied in a tool that has been the subject of a conference paper.
In relation to the second approach, despite self-collection being a hot topic in eDiscovery, concerns are being addressed by limiting the involvement of the custodian to simply plugging in a device and running an application to create an encrypted container of responsive documents.
United States
Under the
law of the United States
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as v ...
, civil discovery is wide-ranging and may seek disclosure of information that is reasonably calculated to lead to the discovery of admissible evidence. This is a much broader standard than relevance, because it contemplates the exploration of evidence which ''might be'' relevant, rather than evidence which is truly relevant. (Issues of the scope of relevance are taken care of before trial with motions
''in limine'' and during trial with objections.) Certain types of information are generally protected from discovery; these include information which is
privileged and the
work product of the opposing party. Other types of information may be protected, depending on the type of case and the status of the party. For instance, juvenile criminal records are generally not discoverable, peer review findings by hospitals in medical negligence cases are generally not discoverable and, depending on the case, other types of evidence may be non-discoverable for reasons of privacy, difficulty or expense in complying and for other reasons. (Criminal discovery rules may differ from those discussed here.)
Electronic discovery or "e-discovery" refers to discovery of information stored in
electronic format (often referred to as
Electronically Stored Information, or ESI).
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 either a
settlement
Settlement may refer to:
*Human settlement, a community where people live
*Settlement (structural), the distortion or disruption of parts of a building
* Closing (real estate), the final step in executing a real estate transaction
*Settlement (fin ...
or
summary judgment
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of ...
, which eliminates the expense and risks of a trial.
Discovery is also available in
criminal cases. Under the rule set forth in ''
Brady v. Maryland
''Brady v. Maryland'', 373 U.S. 83 (1963), was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant ( exculpatory evidence) to the defense. '', the
prosecutor is obligated to provide to the defendant any information that is
exculpatory
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to present guilt.
In many countries, includi ...
or potentially exculpatory, without any request by the defense. Further discovery is available if initiated by the defendant. For example, a discovery demand might be for production of the names of witnesses, witness statements, information about evidence, a request for opportunity to inspect tangible evidence, and for any reports prepared by expert witnesses who will testify at trial.
[See, e.g., ]
If a defendant in a criminal case requests discovery from the prosecution, the prosecutor may request reciprocal discovery. The prosecutor's right to discovery is deemed reciprocal as it arises from the defendant's request for discovery. The prosecutor's ability to obtain discovery is limited by the defendant's
Fifth Amendment rights, specifically the defendant's constitutional protection against self-incrimination.
Federal law
Discovery in the United States is unique compared to other
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
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
According to the
Federal Rules of Civil Procedure, the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
must
initiate a conference between the parties after the
complaint was served to the defendants, to plan for the discovery process.
The parties should attempt to agree on the proposed discovery schedule, and submit a proposed Discovery Plan to the court within 14 days after the conference.
After that, the main discovery process begins which includes:
initial disclosures,
depositions,
interrogatories
In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in adv ...
,
request for admissions
A request for admission (sometimes also called a request to admit) is a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admission ...
(RFA) and
request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items made in the course of litigation. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request t ...
of documents (RFP). In most
federal district courts, the formal requests for
interrogatories
In law, interrogatories (also known as requests for further information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary in order to clarify matters of fact and help to determine in adv ...
,
request for admissions
A request for admission (sometimes also called a request to admit) is a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admission ...
and
request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items made in the course of litigation. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request t ...
are exchanged between the parties and not filed with the court. Parties, however, can file
motion to compel A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a t ...
discovery if responses are not received within the FRCP time limit. Parties can file a motion for a protective order if the discovery requests become unduly burdensome or for purpose of harassment.
In federal criminal prosecutions, discovery rights originate from a number of important Supreme Court decisions and statutes, the most important of which are,
*''
Brady v. Maryland
''Brady v. Maryland'', 373 U.S. 83 (1963), was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant ( exculpatory evidence) to the defense. '', 373 U.S. 83 (1963), which requires a prosecuting attorney to disclose to a defendant any material which is potentially exculpatory or that would impeach the credibility of a prosecution witness. ''Brady'' also applies to evidence that would mitigate the defendant's sentence if a defendant is convicted.
*''
Jencks v. United States
''Jencks v. United States'', 353 U.S. 657 (1957), is a U.S. Supreme Court case. The court held that the government must produce documents relied upon by government witnesses in federal criminal procedures.
The petitioner, Clinton Jencks appealed, ...
'', 353 U.S. 657 (1957), and the Jencks Act, which requires federal prosecutors to produce any witness statement in the government's possession that relates to the subject of the witness' testimony, if that witness will testify against the defendant.
*''
Giglio v. United States'', 405 U.S. 150 (1972) and the resulting ''Giglio'' rule, which requires that any deal with a witness that might call the witness's credibility into question must be disclosed in court. As a consequence, any plea bargain or deal made by the prosecutor with a witness in exchange for testimony should be disclosed to the defense as part of the discovery process.
The formal discovery process for federal criminal prosecutions is outlined in the Federal Rules of Criminal Procedure, Rule 16.
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.
Forty 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.
Where above is stated "litigants may only resort to the D.C. Superior Court" upon correction is found according to the District of Columbia Superior Court Rules of Civil Procedure Section 73(b)Judicial Review and Appeal which states: "Judicial review of a final order or judgment entered upon direction of a hearing commissioner is available on motion of a party to the Superior Court judge designated by the Chief Judge to conduct such reviews...After that review has been completed, appeal may be taken to the District of Columbia Court of Appeals." This rule basically implies that in a civil action, if a hearing commissioner is authorized by all parties to conduct the proceedings instead of a judge, upon a request for a review or appeal, the motion must first be reviewed by a Superior Court judge to the same standard as a motion for appeal on a Superior Court Judge to the Court of Appeals, but the right to appeal to the higher courts still remains.
State law
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. Many states have adopted the
Uniform Interstate Depositions and Discovery Act The Uniform Interstate Depositions and Discovery Act (UIDDA) is a model statute adopted by a majority of U.S. states to establish a uniform process for obtaining depositions and discovery in concert with other participating states. In 2007 the ...
to provide uniform process when discovery is to be done out of state.
Alaska
In Alaska criminal courts, discovery is governed by Rule of Criminal Procedure 16 (Cr.R.16). The scope of discovery is broad and includes much more than is required by ''Brady v. Maryland'', 373 U.S. 83 (1963). The discovery process is intended to provide adequate information for informed pleas, to expedite trial, minimize surprise, afford an opportunity for effective cross-examination, and meet the requirements of due process. To the extent possible, discovery prior to trial should be as full and free as possible, consistent with protection of persons, effective law enforcement, and the adversarial system.
A prosecuting attorney is required to disclose to the accused the following material, and to make it available for inspection and copying: (i) names and addresses of witnesses, (ii) written or recorded statements of the accused, (iii) written or recorded statements of a co-defendant, (iv) any books, papers, documents, photographs or tangible objects with the prosecutor intends to use at trial, (v) any prior criminal convictions of the defendant or any witness. In practice, this means that criminal defendants in Alaska are able to review any police report, lab report, audio/video recordings, witness statements, and more, before they proceed to trial. Most defendants will also have this material far enough in advance to have reviewed it before making a decision about any possible plea deal.
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 written discovery generally consists of four methods: demands for inspection (the formal statutory name for requests for production of documents), form interrogatories, special interrogatories, and requests for admissions. The duty to respond to California discovery requests is not a continuing duty: 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. Historically, California depositions were not limited in length until the Legislature enacted reforms in 2012. Another key difference is that most objections ''must'' be made in detail on the record at deposition or they are permanently waived. A party may only propound thirty-five written special interrogatories on any other single party unless the propounding party submits a "declaration of necessity". 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.
Criticism
The use of discovery has been criticized as favoring the wealthier side in a lawsuit, by enabling parties to drain each other's financial resources in a
war of attrition
The War of Attrition ( ar, حرب الاستنزاف, Ḥarb al-Istinzāf; he, מלחמת ההתשה, Milhemet haHatashah) involved fighting between Israel and Egypt, Jordan, the Palestine Liberation Organisation (PLO) and their allies from ...
. For example, one can make information requests that are potentially expensive and time-consuming for the other side to fulfill; respond to a discovery request with thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and take other measures that increase the difficulty and cost of discovery. In 1983, the Advisory Committee on Civil Rules attached a Committee Note to Rule 26 of the FRCP that cautioned federal courts to "prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent," then had to repeat and stress that exact same text in the 2015 Committee Note.
It has been argued that although the goal of discovery is to level the playing field between the parties, the discovery rules instead create a
multi-level playing field that favors the party that is in control of the information needed by the other party.
Cameron Stracher
Cameron Stracher is a writer, law professor, and media lawyer. He is a graduate of Harvard Law School and teaches at New York Law School. After graduating from Harvard, he worked for one year at the law firm of Covington & Burling in Washington, ...
''Double Billing: A Young Lawyer's Tale of Greed, Sex, Lies, and the Pursuit of a Swivel Chair''
(New York: William Morrow, 1998), 125–126. Instead of encouraging discovery, the rules are described as encouraging lawyers to find new ways to manipulate and distort or conceal information.
Some
tort reform
Tort reform refers to changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation (particularly actions for negligence) or to reduce damages they can receive. Such changes a ...
supporters make a similar accusation, that discovery is used by plaintiffs' lawyers to impose costs on defendants in order to force settlements in unmeritorious cases to avoid the cost of discovery. However, others argue that discovery abuse is an exaggerated concept, that discovery works well in most cases, and exaggeration of American litigiousness and its cost result in confusion within the justice system.
As implemented in 1938, the modern American discovery scheme granted powers directly to private parties and their counsel which are "functionally equivalent" to the power to issue self-executing administrative subpoenas.
This is why
civil law countries strongly dislike and oppose American discovery: they regard broad discovery in the hands of private parties as destructive of the
rule of law because from their perspective, the result amounts to "a private inquisition."
Civil law countries see the underlying objectives of discovery as properly
monopolized by the state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the
executive branch, and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the
legislative branch
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known ...
.
England and Wales
The discovery process in England and Wales is known as 'disclosure'. This process occurs in both civil and criminal cases.
Criminal Disclosure
Criminal disclosure is the process by which the Crown, typically through the
Crown Prosecution Service
The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.
The main responsibilities of the CPS are to provide legal advi ...
, provides the defence with relevant information discovered during the course of a criminal investigation.
The disclosure process helps protect the
right to a fair trial. Every accused person has a right to a fair trial. This right is a fundamental part of our legal system and is guaranteed by Article 6 of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(ECHR).
The test for what information should be provided during disclosure is set by section 3 of the
Criminal Procedure and Investigations Act 1996
The Criminal Procedure and Investigations Act 1996 or CPIA Abbreviation used in Ministry of JusticeCriminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice published March 2015, accessed 29 October 2022 is a piece of sta ...
(CPIA). This requires the Crown to provide all information which might be reasonably capable of undermining the prosecution case or assisting the defence case. This standard is an ongoing obligation throughout the lifespan of a criminal investigation and trial. While the majority of disclosure will likely take place at the outset of a trial - usually at or before the Pre-trial Preparation Hearing (PTPH), multiple disclosures may occur throughout a case as required.
Detailed guidance on the manner in which disclosure is undertaken is offered by the Code of Practice for the CPIA 1996 and the Attorney General's Disclosure Guidelines.
The Attorney General's Disclosure Guidelines provide:
Third Party Material
Third party material is a specific class of material identified by the fact that it originates outside the activity of the criminal inquiry or prosecution. Typically, third party material includes mobile device data; CCTV; and medical, therapeutic or local authority records. This material may reveal important information to the inquiry which may become evidence in the case. Where information from third party sources does not form part of the evidence, it may still need to be disclosed if it meets the disclosure test.
Access to third party material is governed by the Attorney General's Guidelines on Disclosure. These require that third party material must be relevant to a reasonable line of inquiry in order to be obtained. As such, third party material should never be accessed speculatively. It must always be based on a clear set of pre-existing reasons.
Access to third party material, especially in rape and serious sexual assault cases (RASSO), has come under heavy criticism from groups representing victims of these crimes. They argue that requests for material from victims has become excessive and that 'requests often go far beyond simply seeking contemporaneous records, or records known to contain evidence that relates to the incident: indeed, often records are sought which span many years, and in circumstances where the victim/survivor is not aware of any relevant material existing within the records.'
The invasive nature of improper or excessive access to third party material has been accepted by the government in the end-to-end rape review, which sets out actions to be taken to reform the approach of the CPS and police to third party material.
Recent guidance and legal judgments, including the Court of Appeal case of R v Bater-James & Anor
020
020 is the national dialling code for London in the United Kingdom. All subscriber numbers within the area code consist of eight digits and it has capacity for approaching 100 million telephone numbers. The code is used at 170 telephone exch ...
EWCA Crim 790 and the mobile phone extraction report by the Information Commissioner's Office have set out detailed principles for accessing third party material - especially in the case of mobile and digital information. These balance the rights to privacy of victims and witnesses with the right to fair trial for defendants.
Civil Disclosure
The discovery process in the jurisdiction of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
has been known as "disclosure" since the reforms to civil procedure introduced by
Lord Justice Woolf in 1999.
For many types of
cause of action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...
(but not for example
personal injury claims, which have their own additional parts of procedure rules to follow) disclosure is governed by Part 31 of the
Civil Procedure Rules
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...
(CPR), and its linked Practice Direction (PD) 31B on disclosure of electronic documents, adopted in October 2010.
Ministry of Justice A Ministry of Justice is a common type of government department that serves as a justice ministry.
Lists of current ministries of justice
Named "Ministry"
* Ministry of Justice (Abkhazia)
* Ministry of Justice (Afghanistan)
* Ministry of Just ...
PRACTICE DIRECTION 31B – DISCLOSURE OF ELECTRONIC DOCUMENTS
last updated 1 October 2020, accessed 11 September 2022 The purpose of the Practice Direction is "to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a
proportionate and cost-effective manner".
As in the United States, certain documents are
privileged, such as letters between solicitors and experts.
The usual forms of discovery are general discovery and specific discovery since parties in issue are unlikely to reach agreements as to what ought to be disclosed. This reflects in the current discovery rules which put emphasis on compliance of time limit, rules on service, proper list of documents and rules on privileges set out in Part 31 of CPR and PD 31B. Once a party properly conducts general discovery in accordance with discovery rules and procedures, documents are deemed discoverable, i.e. documents are available for inspection. Inspectionability refers to procedural and legal elements: the former concerns clerical production of documents; the latter concerns the relevance test (''Peruvian Guano v Financiaso Compagneiage'' (1881) 10 EWR 125) and linkage test.
A mandatory disclosure pilot was introduced on 1 January 2019 for use in relation to a range of claims handled by the
Business and Property Courts, in order to support a more co-operative approach to disclosure, the scope of the documents to be disclosed being "not wider than is reasonable and proportionate ... in order fairly to resolve
heissues".
[Ministry of Justice]
Practice Direction 51U - Disclosure Pilot for the Business and Property Courts
, updated 1 October 2018, accessed 28 January 2021
See also
*
Early case assessment
Early case assessment refers to estimating risk (cost of time and money) to prosecute or Lawyer, defend a legal case. Global organizations deal with legal discovery and Discovery (law), disclosure requests for electronically stored information "ES ...
*
Second request
* ''
subpoena ad testificandum
A ''subpoena ad testificandum'' is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle A ...
''
* ''
subpoena duces tecum
A ''subpoena duces tecum'' (pronounced in English ), or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In s ...
''
References
External links
*
Federal Rules of Civil ProcedureDepositions and Discovery
{{DEFAULTSORT:Discovery (Law)
Information governance
Records management