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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.
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.
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.
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 ) 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.
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.
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, 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.