in the United States
|Resolution without trial|
Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.
Under the law of the United States, 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 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 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 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.
Discovery is also available in criminal cases. Under the rule set forth in Brady v. Maryland, the prosecutor is obligated to provide to the defendant any information that is exculpatory 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.
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.
Discovery in the United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" .
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 federal district courts, 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.
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), pursuant to which a prosecuting attorney is required 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, subsequently passed by Congress, pursuant to which federal prosecutors are required 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, pursuant to which 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.
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.
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.
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: Request for Production of Documents, Form Interrogatories, Special Interrogatories, and Requests for Admissions. Responses to 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 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.
The use of discovery has been criticized as favoring the wealthier side in a lawsuit, in that may enable parties to drain each other's financial resources in a war of attrition. 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.
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 field that favors the party that is in control of the information needed by the other party. 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 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.
Electronic discovery, also known as ediscovery, involves the discovery of electronic data and records. It is important that data obtained through ediscovery to 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 
In England and Wales
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The discovery process in the jurisdiction of England and Wales has been known as "disclosure" since the reforms to civil procedure introduced by Lord Justice Woolf in 1999.
Disclosure is for many types of cause of action (but not for example Personal Injury which has its own additional Parts of procedure rules to follow) governed by Part 31 of the Civil Procedure Rules (CPR), and its linked Practice Direction (PD) 31B. 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 process in accordance with discovery rules and procedures, documents are deem discoverable, i.e. documents are available for inspection. Inspectionability refers to procedural and legal elements: the former concerns clerical production of document; the latter concerns the relevance test (Peruvian Guano v Financiaso Compagneiage (1881) 10 EWR 125) and linkage test.
- Kyckelhahn, Tracey; Cohen, Thomas H. (August 2008). "Civil Rights Complaints in U.S. District Courts, 1990-2006" (PDF). U.S. Department of Justice. Retrieved 30 September 2017.
- Larson, Aaron (18 August 2016). "Conducting Discovery in a Civil Lawsuit". ExpertLaw. Retrieved 30 September 2017.
- Schwarzner, William W. (1988). "The Federal Rules, the Adversary Process, and Discovery Reform". University of Pittsburgh Law Review. 50: 703. Retrieved 30 September 2017.
- Hawkins, Kenneth B. (December 1953). "Discovery and Rule 34: What's So Wrong About Surprise?". American Bar Association Journal. 39 (12): 1075–1079. JSTOR 25718642.
- Warner, Charles C. (1998). "Motions in Limine in Employment Discrimination Litigation". University of Memphis Law Review. 29: 823. Retrieved 30 September 2017.
- Kelly, Robert L. (September 2007). "The Tech Side of E-Discovery". Business Law Today. 17 (1). Retrieved 30 September 2017.
- Kyckelhahn, Tracey; Cohen, Thomas H. (August 2008). "Civil Rights Complaints in U.S. District Courts, 1990-2006" (PDF). Bureau of Justice Statistics. U.S. Department of Justice. Retrieved 30 September 2017.
- Larson, Aaron (2 September 2016). "What Happens After Criminal Charges Are Filed". ExpertLaw. Retrieved 30 September 2017.
- See, e.g., "Federal Rules of Criminal Procedure, Rule 16. Discovery and Inspection". Legal Information Institute. Cornell Law School. Retrieved 30 September 2017.
- Kane, Robert F. (1972). "Criminal Discovery - The Circuitous Road to a Two-Way Street". University of San Francisco Law Journal. 7: 203. Retrieved 30 September 2017.
- "Federal Rules of Civil Procedure, Rule 26. Duty to Disclose; General Provisions Governing Discovery". Legal Information Institute. Cornell Law School. Retrieved 30 September 2017.
- "18 U.S. Code § 3500 - Demands for production of statements and reports of witnesses". Legal Information Institute. Cornell Law School. Retrieved 30 September 2017.
- "Civil Discovery Act". California Legislative Information. California State Legislature. Retrieved 30 September 2017.
- Cal. Code Civ. Proc., § 2019.010
- Singer v. Sup. Ct., 54 Cal.2d 318, 325 (1960).
- "California Code of Civil Procedure, Sec. 2030.030. Propounding Interrogatories". California Legislatie Information. California State Legislature. Retrieved 30 September 2017.
- Cal. Code Civ. Proc., § 2030.060
- See e.g., "Form Interrogatories - General" (PDF). California Courts. Retrieved 30 September 2017.
- Lord, Miles W. (1986). "Discovery Abuse: Appointing Special Masters". Hamline Law Review. 9: 63. Retrieved 30 September 2017.
- 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.
- Ramseyer, J. Mark (2015). Second-Best Justice: The Virtues of Japanese Private Law. Chicago, IL: University of Chicago Press. ISBN 978-0-226-28199-5.
Faced with grinding discovery demands that distract employees from operating the business, even blameless defendants settle.
- Mullenix, Linda S. (July 1994). "Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking". Stanford Law Review. 46 (6): 1393–1445. JSTOR 1229162.
- Steel, C (2006). Windows forensics: The field guide for conducting corporate computer investigations. Indianapolis, IN: Wiley Publishing.
- "Method and system for searching for, and collecting, electronically-stored information". Elliot Spencer, Samuel J. Baker, Erik Andersen, Perlustro LP. 2009-11-25.
- Richard, Adams,; Graham, Mann,; Valerie, Hobbs, (2017). "ISEEK, a tool for high speed, concurrent, distributed forensic data acquisition". Research Online. doi:10.4225/75/5a838d3b1d27f.
- "Self-Collection In E-Discovery — Risks Vs. Rewards - Law360". www.law360.com. Retrieved 2018-03-10.