In pre-trial
discovery
Discovery may refer to:
* Discovery (observation), observing or finding something unknown
* Discovery (fiction), a character's learning something unknown
* Discovery (law), a process in courts of law relating to evidence
Discovery, The Discove ...
,
parties
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature ...
may have the right to inspect documents that are relevant to the case. In
civil cases
Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the United States, the term refers to non-criminal law. The law rel ...
, the concept of "documents" has been interpreted broadly, and it generally includes any item that contains descriptive information, including electronic records.
History
Traditionally, in the English
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 omniprese ...
system, parties who filed lawsuits that requested
legal remedies
A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its ...
could file a request in the
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 ...
to inspect of documents in the possession of an opposing party, as long as the documents "tended to prove 'the case' at law of the party filing the
equest" If the documents were not
privileged, the court would order the opposing party to provide the requested documents to a clerk in the Court of Chancery so that duplicates could be made. These documents could then later be used as evidence at trial.
Procedures
In many
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
s, parties who wish to inspect documents must deliver a formal
request for inspection to the parties that possess those documents. These requests usually must describe the documents that would be inspected. Once the request has been delivered to the party in possession of the documents, that party generally must allow for inspection or respond with
objections within a specified period of time. Some jurisdictions allow parties in the case to inspect documents that are in the possession of individuals or organizations that are not a party in the case. In general, courts have discretion to compel parties to disclose documents, and courts may also limit a party's right to access or inspect documents. In England, for example, when determining whether a party should be allowed to inspect documents, courts balance the party's need for that evidence against any public interests that would be protected by denying the request for inspection. Courts may also impose
sanctions on parties that do not comply with requests for inspection.
[Thomas Scott Murley]
''Compelling Production of Documents in Violation of Foreign Law: An Examination and Reevaluation of the American Position''
50 877, 879 (1982) (discussing balance between discovery requirements and foreign nondisclosure laws). Some commentators, such as Daniel C. Girard and Todd I. Espinoza, argue that parties are rarely penalized for failing to comply with requests for inspection of documents and that " rvice of evasive discovery responses has become a routine." Daniel C. Girard & Todd I. Espinoza
''Limiting Evasive Discovery: A proposal for Three Cost-Saving Amendments to the Federal Rules''
87 473, 475 (2010).
See also
*
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 a ...
*
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 ...
* ''
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
{{Reflist, 30em
Discovery (law)