Discovery (law)
Encyclopedia
In U.S.law
, discovery is the pre-trial phase in a lawsuit
in which each party, through the law of civil procedure
, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.
, civil discovery is wide-ranging and can involve any material which is "reasonably calculated to lead to 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 actually relevant. (Issues of the scope of relevance are taken care of before trial in 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 ther 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 and/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
or summary judgment
, which eliminates the expense and risks of a trial.
is unique compared to other common law
countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure
guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" http://www.law.cornell.edu/rules/frcp/#chapter_v.
According to the Federal Rules of Civil Procedure
, the plaintiff
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
, request for admissions
(RFA) and request for production
of documents(RFP). In most of United States district (federal) court
s the formal requests for interrogatories
, request for admissions
and request for production
are exchanged between the parties and not filed with the court. Parties, however, can file motion to compel
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.
California discovery requests are not continuing: the responding party only needs to respond with the facts as known on the date of the response, and is under no obligation to update its responses as new facts become known. This causes many parties to reserve one or two interrogatories until the closing days of discovery, when they ask if any of the previous responses to discovery have changed, and then ask what the changes are. California depositions are not limited to one day, and objections must be made in detail or they are permanently waived. A party may only propound thirty-five written interrogatories on any other single party, and no "subparts, or a compound, conjunctive, or disjunctive question" may be included in an interrogatory; however, "form interrogatories" which have been approved by the state Judicial Council do not count toward this limit. In addition, no "preface or instruction" may be included in the interrogatories unless it has been approved by the Judicial Council; in practice, this means that the only instructions permissible with interrogatories are the ones provided with the form interrogatories.
Thirty-five interrogatories, including parts and sub-parts, may be propounded by one party on any other party.
There is no requirement for a "privilege log": federal Rule 26(b)(5) was not adopted by the D.C. Superior Court.
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 judgement 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.
described a variety of unpleasant tactics common in the United States, and concluded:
Tort reform
supporters argue that such tactics are often used by plaintiffs' lawyers to impose costs on defendants to force settlements in unmeritorious cases to avoid the cost of discovery. Victim's rights advocates, on the other hand, believe that the opposite is true: defendants typically have greater resources than plaintiffs and, accordingly, they impose costs on parties deserving compensation by dragging out the litigation process as opposed to offering a fair settlement.
is known as "disclosure," and is always used in complex civil litigation. As in the USA, certain documents are privileged, such as letters between solicitors and experts. Full details are given in Legal professional privilege (England & Wales)
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, discovery is the pre-trial phase in a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
in which each party, through the law of civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.
Civil discovery in the United States
Under the law of the United StatesLaw of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
, civil discovery is wide-ranging and can involve any material which is "reasonably calculated to lead to 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 actually relevant. (Issues of the scope of relevance are taken care of before trial in motions in limine and during trial with objections.) Certain types of information are generally protected from discovery; these include information which is privileged
Privilege (evidence)
An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
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 ther 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 and/or expense in complying and for other reasons. (Criminal discovery rules may differ from those discussed here.) Electronic discovery
Electronic Discovery
Electronic discovery refers to discovery in civil litigation which deals with the exchange of information in electronic format . Usually a digital forensics analysis is performed to recover evidence...
or "e-discovery" refers to discovery of information stored in electronic format
Digital evidence
Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial...
(often referred to as Electronically Stored Information
Electronically stored information
Electronically stored information, for the purpose of the Federal Rules of Civil Procedure is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software....
, 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 (law)
In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law.-Basis:...
or summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
, which eliminates the expense and risks of a trial.
At the federal level
Discovery in the United StatesCivil discovery under United States federal law
Civil discovery under United States federal law is wide-ranging and can involve any material which is relevant to the case except information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions...
is unique compared to other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of 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" http://www.law.cornell.edu/rules/frcp/#chapter_v.
According to the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
, the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
must initiate a conference
Initial Conference (Law)
An Initial conference is one of the first steps of the discovery process in a civil case. In the U.S. federal court system, initial conferences are governed by Rule 26 of the Federal Rules of Civil Procedure.-Rule 26 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
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
, interrogatories
Interrogatories
In law, interrogatories 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 advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
, request for admissions
Request for admissions
A request for admissions are 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 admissions are part of the discovery process in a civil case. In the U.S...
(RFA) and request for production
Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents that it has that pertain to the subject...
of documents(RFP). In most of United States district (federal) court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
s the formal requests for interrogatories
Interrogatories
In law, interrogatories 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 advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
, request for admissions
Request for admissions
A request for admissions are 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 admissions are part of the discovery process in a civil case. In the U.S...
and request for production
Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents that it has that pertain to the subject...
are exchanged between the parties and not filed with the court. Parties, however, can file motion to compel
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 third party believes that the discovery responses...
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.
At the state level
Many states have adopted discovery procedures based on the federal system; some closely adhere to the federal model, others not so closely. Some states take an entirely different approach to discovery.California
In California state courts, discovery is governed by the Civil Discovery Act of 1986 (Title 4 (Sections 2016-2036) of the Code of Civil Procedure), as subsequently amended. A significant number of appellate court decisions have interpreted and construed the provisions of the Act.California discovery requests are not continuing: the responding party only needs to respond with the facts as known on the date of the response, and is under no obligation to update its responses as new facts become known. This causes many parties to reserve one or two interrogatories until the closing days of discovery, when they ask if any of the previous responses to discovery have changed, and then ask what the changes are. California depositions are not limited to one day, and objections must be made in detail or they are permanently waived. A party may only propound thirty-five written interrogatories on any other single party, and no "subparts, or a compound, conjunctive, or disjunctive question" may be included in an interrogatory; however, "form interrogatories" which have been approved by the state Judicial Council do not count toward this limit. In addition, no "preface or instruction" may be included in the interrogatories unless it has been approved by the Judicial Council; in practice, this means that the only instructions permissible with interrogatories are the ones provided with the form interrogatories.
District of Columbia
The District of Columbia follows the federal rules, with a few exceptions. Some deadlines are different, and litigants may only resort to the D.C. Superior Court.Thirty-five interrogatories, including parts and sub-parts, may be propounded by one party on any other party.
There is no requirement for a "privilege log": federal Rule 26(b)(5) was not adopted by the D.C. Superior Court.
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 judgement 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.
Criticism of U.S. discovery
The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other's financial resources in a war of attrition. For example, one can make information requests, which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on. In a critique of the U.S. legal profession, attorney and writer Cameron StracherCameron 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, D.C., and then moved to Iowa City, Iowa, where he...
described a variety of unpleasant tactics common in the United States, and concluded:
Tort reform
Tort reform
Tort reform refers to proposed changes in common law civil justice systems that would reduce tort litigation or damages. Tort actions are civil common law claims first created in the English commonwealth system as a non-legislative means for compensating wrongs and harm done by one party to...
supporters argue that such tactics are often used by plaintiffs' lawyers to impose costs on defendants to force settlements in unmeritorious cases to avoid the cost of discovery. Victim's rights advocates, on the other hand, believe that the opposite is true: defendants typically have greater resources than plaintiffs and, accordingly, they impose costs on parties deserving compensation by dragging out the litigation process as opposed to offering a fair settlement.
Discovery in the United Kingdom
The same process in England and WalesEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
is known as "disclosure," and is always used in complex civil litigation. As in the USA, certain documents are privileged, such as letters between solicitors and experts. Full details are given in Legal professional privilege (England & Wales)
Legal professional privilege (England & Wales)
In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence...
.
See also
- Electronic DiscoveryElectronic DiscoveryElectronic discovery refers to discovery in civil litigation which deals with the exchange of information in electronic format . Usually a digital forensics analysis is performed to recover evidence...
- Second requestSecond request (law)In United States antitrust law, a second request is a discovery procedure by which the Federal Trade Commission and the Antitrust Division of the Justice Department investigate mergers and acquisitions which may have anticompetitive consequences.-Legal basis:...
- subpoena ad testificandumSubpoena ad testificandumA 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 the High Middle Ages, especially in England...
- subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
- Early case assessmentEarly case assessmentEarly case assessment refers to estimating risk to prosecute or defend a legal case. Global organizations deal with legal discovery and disclosure requests for electronically stored information "ESI" and paper documents on a regular basis.Over 90% of all cases settle prior to trial...
External links
- Federal Rules of Civil ProcedureFederal Rules of Civil ProcedureThe Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
: Depositions and Discovery