Discovery, in the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions, is a phase of pretrial procedure in a

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

in which each party, through the law of

civil procedure Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or ca ...

, can obtain

evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...

from other parties. This is by means of methods of discovery 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 ad ...

, requests for production of documents,

requests 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 depositions. Discovery can be obtained from nonparties 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. Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order.

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#History, common law. The Chancery had jurisdiction over ...

: 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. Available through

HeinOnline HeinOnline (HOL) is a commercial internet database service launched in 2000 by William S. Hein & Co. (WSH Co), a Buffalo, New York publisher specializing in legal materials. The company was founded in Buffalo, New York, in 1961, and is currently ...

. The practice of pleading ''positiones'' in

canon law Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...

(which influenced Chancery procedure) had originated with "the practice of the courts of the

Italian communes A (; : , ) is an administrative division of Italy, roughly equivalent to a township or municipality. It is the third-level administrative division of Italy, after regions () and provinces (). The can also have the title of (). Formed ac ...

in the early thirteenth century". Although canonists also looked to

Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law also den ...

, ''positiones'' were unknown to the Romans. 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. She was the last and longest reigning monarch of the House of Tudo ...

(1558–1603) and the late seventeenth century, positions were gradually replaced by

: 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. 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 ...

at least 14 days before the date of the examination. In London, the examinations took place before a

master Master, master's or masters may refer to: Ranks or titles In education: *Master (college), head of a college *Master's degree, a postgraduate or sometimes undergraduate degree in the specified discipline *Schoolmaster or master, presiding office ...

or an examiner in

Chancery Lane Chancery Lane is a one-way street that forms part of the City of London#Boundary, western boundary of the City of London. The east side of the street is entirely within the City,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 is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warran ...

. The person(s) examining the witness would appoint a clerk, whom 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 non-fictional (memoir, biography, news report, documentary, travel literature, travelogue, etc.) or fictional (fairy tale, fable, legend, thriller ...

, rather than as responses given in the first person to discrete questions. At p. 86. Available through SpringerLink. In other words, the actual sequence of questions and answers was not transcribed verbatim like a modern deposition. For example, the surviving narratives of multiple witnesses to a 16 May 1643

enclosure Enclosure or inclosure is a term, used in English landownership, that refers to the appropriation of "waste" or "common land", enclosing it, and by doing so depriving commoners of their traditional rights of access and usage. Agreements to enc ...

riot in

Whittlesey Whittlesey (also Whittlesea) is a market town and civil parish in the Fenland District, Fenland district of Cambridgeshire, England. Whittlesey is east of Peterborough. The population of the parish was 17,667 at the 2021 Census. Toponymy W ...

reveal striking similarities which imply the witnesses probably gave "yes" and "no" answers to the same set of interrogatories. At p. 87. Available through SpringerLink. 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). At p. 85. 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 by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

" 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 titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...

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 and canon law, and therefore had some knowledge of the inquisitorial system as it functioned in

ecclesiastical court In organized Christianity, an ecclesiastical court, also called court Christian or court spiritual, is any of certain non-adversarial courts conducted by church-approved officials having jurisdiction mainly in spiritual or religious matters. Histo ...

s. The secrecy was thought to be absolutely essential to prevent

perjury Perjury (also known as forswearing) 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 insta ...

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 difficulty ...

; 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. One key difference, however, was that in ecclesiastical courts, the judge himself took the depositions of the witnesses (by reading to them the interrogatories submitted by the parties), and thus personally developed the factual record which the parties would then argue over at trial. To modern eyes, the most bizarre aspect of Chancery's adoption of such a labor-intensive quasi-inquisitorial procedure was that for most of its history, Chancery was a one-judge court. The Crown always attempted to operate the

judiciary of England and Wales There are various levels of judiciary in England and Wales—different types of courts have different styles of judges. They also form a strict hierarchy of importance, in line with the order of the courts in which they sit, so that judges o ...

as cheaply as possible—by leaving it severely understaffed in comparison to its counterparts on the

European continent Europe is a continent located entirely in the Northern Hemisphere and mostly in the Eastern Hemisphere. It is bordered by the Arctic Ocean to the north, the Atlantic Ocean to the west, the Mediterranean Sea to the south, and Asia to the eas ...

—thereby leaving the chancellors no choice but to delegate factfinding procedures like the taking of depositions. Despite these defects, English settlers brought discovery and depositions with them to the

Thirteen Colonies The Thirteen Colonies were the British colonies on the Atlantic coast of North America which broke away from the British Crown in the American Revolutionary War (1775–1783), and joined to form the United States of America. The Thirteen C ...

, including the tradition of having courts of equity appoint masters to take depositions. It is this quasi-inquisitorial procedure to which the

United States Congress The United States Congress is the legislature, legislative branch of the federal government of the United States. It is a Bicameralism, bicameral legislature, including a Lower house, lower body, the United States House of Representatives, ...

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 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 List of colonial govern ...

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 turn on question ...

amended the

Federal Equity Rules The Federal Equity Rules were rules that governed civil procedure in suits of equity in the federal judiciary of the United States from 1822 until superseded by the Federal Rules of Civil Procedure in 1938. The Rules were established by the Uni ...

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, and their presence meant the proceedings were no longer secret. A New York deposition from January 1839 reveals that the examiner had already lost control of the examination. The examiner was reduced to summarizing a flurry of objections and arguments exchanged between the lawyers after one of them allegedly tried to take the witness aside to get an informal preview of the witness's answers before getting them on the record. All this would have been impossible under the old deposition procedure where counsel was not present. 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: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

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 ( 36 & 37 Vict. c. 66) (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 an ...

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 (England and Wales), Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cour ...

. 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 The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. They are the companion to the Federal Rules of Criminal Procedure. Rules promulgated by the ...

(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 and ...

) 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 Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...

, 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 In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-product exception, ...

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 Electronic discovery (also ediscovery or e-discovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often r ...

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), downward movement of a structure's foundation *Settlement (finance), where securities are delivered against payment of money *Settlement (litigatio ...

summary judgment In law, a summary judgment, also referred to as judgment as a matter of law or summary disposition, is a Judgment (law), judgment entered by a court for one party and against another party summarily, i.e., without a full Trial (law), trial. Summa ...

, which eliminates the expense and risks of a trial. Discovery is also available in

criminal In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...

cases. Under the rule set forth in '' Brady v. Maryland'', the

prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

is obligated to provide to the defendant any information that is

exculpatory Exculpatory evidence is evidence (law), evidence favorable to the defendant in a criminal law, criminal trial that exonerates or tends to exonerate the defendant of guilt (law), guilt. It is the opposite of inculpatory evidence, which tends to pr ...

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

countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The

guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery
Federal Rules of Civil Procedure
According to the

, 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 the ...

must initiate a conference between the parties after the

complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

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,

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 United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district. Each district covers one U.S. state or a portion of a state. There is at least one feder ...

, the formal requests for

and

are exchanged between the parties and not filed with the court. Parties, however, can file

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'', 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'', 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 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 (; ) involved fighting between Israel and Egypt, Jordan, the Palestine Liberation Organisation (PLO) and their allies from 1967 to 1970. Following the 1967 Six-Day War, no serious diplomatic efforts were made to resolve t ...

. 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 in other ways 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
''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 consists of 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 ...

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. To weed out spurious plaintiffs in

mass tort A mass tort is a civil action involving numerous plaintiffs against one or a few defendants in state or federal court. The lawsuits arise out of the defendants causing numerous injuries through the same or similar act of harm (e.g. a prescription d ...

cases, some courts may grant a defendant's pre-trial request for a ''Lone Pine'' order, which requires a plaintiff to show ''

prima facie ''Prima facie'' (; ) is a Latin expression meaning "at first sight", or "based on first impression". The literal translation would be "at first face" or "at first appearance", from the feminine forms of ' ("first") and ' ("face"), both in the a ...

'' evidence of injury and specific causation via an expert's report, rather than dovetailing their claims with other plaintiffs. 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 The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...

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 The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...

, 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 a deliberative assembly with the authority, legal authority to make laws for a Polity, political entity such as a Sovereign state, country, nation or city on behalf of the people therein. They are often contrasted with th ...

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 adv ...

, 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 A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...

. Every accused person has a right to a fair trial. This right is a fundamental part of the legal system in England and Wales 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 a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...

(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 stat ...

(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 020EWCA 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 Law of the United Kingdom#Legal jurisdictions, 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. Th ...

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 claim Personal injury is a legal term for an injury to the body, mind, or emotions, as opposed to an injury to property. In common law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit ...

s, 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 Court in civi ...

(CPR), and its linked Practice Direction (PD) 31B on disclosure of electronic documents, adopted in October 2010.

Ministry of Justice A justice ministry, ministry of justice, or department of justice, is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...

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". On 5 October 2022 these rules (with some minor changes) became permanent.

References

External links

Depositions and Discovery
{{DEFAULTSORT:Discovery (Law) Information governance Records management