discovery


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Discovery

A category of procedural devices employed by a party to a civil or criminal action, prior to trial, to require the adverse party to disclose information that is essential for the preparation of the requesting party's case and that the other party alone knows or possesses.

Civil Procedure

Discovery devices used in civil lawsuits are derived from the practice rules of Equity, which gave a party the right to compel an adverse party to disclose material facts and documents that established a Cause of Action. The federal rules of Civil Procedure have supplanted the traditional equity rules by regulating discovery in federal court proceedings. State laws governing the procedure for civil lawsuits, many of which are based upon the federal rules, have also replaced the equity practices.

Discovery is generally obtained either by the service of an adverse party with a notice to examine prepared by the applicant's attorney or by a court order pursuant to statutory provisions.

Discovery devices narrow the issues of a lawsuit, obtain evidence not readily accessible to the applicant for use at trial, and ascertain the existence of information that might be introduced as evidence at trial. Public policy considers it desirable to give litigants access to all material facts not protected by privilege to facilitate the fair and speedy administration of justice. Discovery procedures promote the settlement of a lawsuit prior to trial by providing the parties with opportunities to realistically evaluate the facts before them.

Discovery is contingent upon a party's reasonable belief that he or she has a good cause of action or defense. A court will deny discovery if the party is using it as a fishing expedition to ascertain information for the purpose of starting an action or developing a defense. A court is responsible for protecting against the unreasonable investigation into a party's affairs and must deny discovery if it is intended to annoy, embarrass, oppress, or injure the parties or the witnesses who will be subject to it. A court will stop discovery when used in bad faith.

Information Discovered Pretrial discovery is used for the disclosure of the identities of persons who know facts relevant to the commencement of an action but not for the disclosure of the identities of additional parties to the case. In a few jurisdictions, however, the identity of the proper party to sue can be obtained through discovery. Discovery pursuant to state and federal procedural rules may require a party to reveal the names and addresses of witnesses to be used in the development of the case.

Discovery is not automatically denied if an applicant already knows the matters for which he or she is seeking discovery since one of its purposes is to frame a Pleading in a lawsuit. On the other hand, discovery is permitted only when the desired information is material to the preparation of the applicant's case or defense. Discovery is denied if the matter is irrelevant or if it comes within the protection of a privilege.

Privileged Information Privileged matters are not a proper subject for discovery. For example, a person cannot be forced to disclose confidential communications regarding matters that come within the Attorney-Client Privilege. Discovery cannot be obtained to compel a person to reveal information that would violate his or her constitutional guarantee against Self-Incrimination. However, if a party or witness has been granted Immunity regarding the matters that are the basis of the asserted privilege, that party can be required to disclose such information on pretrial examination.

A person who refuses to comply with discovery on the basis of an asserted privilege must claim the privilege for each particular question at the time of the pretrial examination. An attorney or the court itself cannot claim the privilege for that person. However, a person may waive the privilege and answer the questions put to him or her during discovery.

Objections A party may challenge the validity of a pretrial examination if asserted prior to trial. The merits of such an objection will be evaluated by the court during the trial when it rules on the admissibility of the evidence. If the questions to be asked during a discovery, such as the identity and location of a particular witness, pose a threat to anyone's life or safety, a party can make a motion to a court for a protective order to deny discovery of such information.

Refusal to Respond Failing to appear or answer questions at an examination before trial might result in a Contempt citation, particularly if the person has disobeyed the command of a subpoena to attend. If discovery is pursuant to a court order, the court will require that the party's refusal to answer questions be treated as if the party admitted them in favor of the requesting party. Such an order is called a preclusion order since the uncooperative party is precluded from denying or contradicting the matters admitted due to his or her intentional failure to comply with a discovery order.

Costs

A party who makes a motion for a court to order discovery may be required to pay or make provision for payment of costs—expenses incurred in obtaining discovery when it is granted. If the party eventually wins the lawsuit, the court may demand that the costs be paid by the adversary in the proceedings.

Types of Discovery Devices

Discovery of material information is obtainable by use of depositions, interrogatories, requests for the production and inspection of writings and other materials, requests for admission of facts, and physical examinations.

Depositions A party to a lawsuit may obtain an oral pretrial examination of an adverse party or witness—the deponent—who is under oath to respond truthfully to the questions. This interrogation is known as a deposition or an examination before trial (EBT). The notice or order of examination must specify the particular matters to be discovered, and the line of questioning is usually restricted to such matters. However, the scope and extent of the examination is within the discretion of the court.

In some jurisdictions, a deponent may bring along documents to refresh his or her memory and facilitate testimony. Such materials can be used only when relevant to the line of questioning to which the deponent is subject and only by the designated deponent.

Interrogatories Interrogatories are specific written questions submitted by a person, pursuant to a discovery order, to an adversary who must respond under oath and in writing. Interrogatories must state questions in a precise manner so as to elicit an answer that is pertinent to the issues being litigated.

Production and Inspection A litigant is generally entitled to the production and inspection of relevant documents in the possession or control of an adversary pursuant to discovery. The applicant must have a reasonable belief that such evidence is necessary to the lawsuit if discovery is to be granted.

Requests for Admissions of Facts A party may ask an adversary to admit any material fact or the authenticity of a document that is to be presented as evidence during the trial. This procedure, called a request for an admission of fact, facilitates the fair and efficient administration of justice by minimizing the time and expense incurred in proving issues that are not in dispute.

Only facts, not matters or conclusions of law or opinions, can be admitted when there is no disagreement between the parties. The requesting party does not have to make a motion before a court prior to making such a demand but must comply with any statutory requirements. The matters or documents to be admitted must be particularly described and there must be a time limit for a reply. The response should admit or deny the request or explain in detail the reason for refusing to do so—for example, if the request calls for admission of a Matter of Law. Failure to make a response within the specified time results in the matter being admitted, precluding the noncomplying party from challenging its admission during the trial.

Physical Examination A mental or physical examination of a party whose condition is an issue in litigation may be authorized by a court in the exercise of its discretion.

Criminal Procedure

Under Common Law, there was no discovery in criminal cases. As of the early 2000s, in federal and many state criminal prosecutions, only limited discovery is permissible, unlike the full disclosure of information available in civil actions. Limited discovery prevents the possible intimidation of prosecution witnesses and the increased likelihood of perjury that might result from unabridged disclosure. The obligation of the prosecutor to prove the case Beyond a Reasonable Doubt, the possibility of an unconstitutional infringement upon a defendant's right against self-incrimination, and violations of the attorney-client privilege pursuant to a client's Right to Counsel also hinder complete discovery. A defendant who requests particular documents from the government may be required to submit items of a similar nature to the government upon its request for discovery. The disclosure of false evidence or the failure of the prosecution to disclose documents that are beneficial to the defense can result in a denial of Due Process of Law.

The federal Jencks Act (18 U.S.C.A. § 3500 [1957]) entitles a defendant to obtain access to prosecution documents necessary to impeach the testimony of a prosecution witness by showing that the witness had made earlier statements that contradict present testimony. Theoretically, the defense cannot receive the statements until the witness has finished testimony on direct examination, but, in practice, such statements are usually available before then. Many states have similar disclosure rules.

Further readings

Grenig, Jay E. 2002. Handbook of Federal Civil Discovery and Disclosure. 2d ed. St. Paul, Minn. West group.

Haydock, Roger S. 2002. Discovery Practice. 4th ed. New York: Aspen Law & Business.

Cross-references

Deposition; Immunity; Interrogatories; Self-Incrimination.

discovery

n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period. (See: deposition, interrogatories)

discovery

noun acquisition of knowledge, checking, declaration, descrial, detection, disclosure, disclosure proceedings, distinguishing, divulgence, espial, examination for the purpose of ascerraining facts, exploration, exposition, exposure, finding out, first sight, identification, inquiry, inspection, investigation, investigation to uncover facts, observation, perception, pretrial examination proceedings, quest, revealment, revelation, scrutiny, sighting, surveying, uncovering
Associated concepts: discovery of deceit, discovery of facts, discovery of fraud, discovery of loss, discovery of mistake, discovery proceeding, discovery which can be patented, doctrine of discovered peril
See also: detection, disclosure, invention, manifestation, observation, origination, perception, realization, recognition

discovery

see DISCLOSURE.

DISCOVERY, intern. law. The act of finding an unknown country.
     2. The nations of Europe adopted the principle, that the discovery of any part of America gave title to the government by whose subjects, or by whose authority it was made, against all European governments. This title was to be consummated by possession. 8 Wheat. 543.

DISCOVERY, practice, pleading. The act of disclosing or revealing by a defendant, in his answer to a bill filed against him in a court of equity. Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig: 515.

References in classic literature ?
While the terrible drama of discovery was in progress on one side of the door, trivial questions about the amusements of Venice, and facetious discussions on the relative merits of French and Italian cookery, were proceeding on the other.
The importance of this discovery, and the necessity of not too readily communicating it to others, instantly struck Henry.
You've had a hand in the discovery of the idol of gold, and "
So, as chance directed that he should be the one to discover the body of the sentry when the first alarm had been given following Achmet Zek's discovery that Werper had outwitted him, the crafty black had dragged the dead body to the interior of a nearby tent, and himself resumed his station before the doorway of the hut in which he still believed the woman to be.
With the discovery of the Arab close behind him, the Belgian hid in the foliage of a leafy bush.
Taking to the trees, he moved directly south in search of prey, that he might satisfy his hunger before midday, and then lie up for the afternoon in some spot far from the camp, where he might sleep without fear of discovery until it came time to prosecute his design.
Federal Courts typically treat the discovery process liberally, which means they generally permit discovery to be taken and grant limitations against discovery infrequently.
executive vice president and COO of Discovery, stated, "The granting of Orphan Medicinal Product designation together with the United States FDA's acceptance of the Surfaxin NDA, increases our confidence in the potential for Surfaxin to become a new, worldwide standard of care for the prevention and treatment of RDS.
This PA provides a flexible funding mechanism with regard to budgets and time of award to support the research activities necessary for small businesses to bring their efforts for drug discovery and development to clinical validation.
The Discovery Center was formed as a collaborative effort between The Hole in the Wall Gang Camp (THITWGC), the University of Connecticut (UConn), and participating elementary school systems.
Knowledge discovery in databases uses a variety of methods to evaluate data for relevant relationships that could yield new knowledge.
Discovery Zone plopped into the safety net of bankruptcy court in March and has been trying to re-create its old magic ever since.