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 sup-
planted 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 exam-
ine prepared by the applicant’s attorney or by a
court order pursuant to statutory provisions.
Discovery devices narrow the issues of a law-
suit, obtain evidence not readily accessible to the
applicant for use at trial, and ascertain the exis-
tence 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. Dis-
covery 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 rea-
sonable 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 start-
ing an action or developing a defense. A court is
responsible for protecting against the unreason-
able investigation into a party’s affairs and must
deny discovery if it is intended to annoy, embar-
rass, oppress, or injure the parties or the wit-
nesses 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 per-
sons who know facts relevant to the commence-
ment 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 dis-
covery. 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 exam-
ple, a person cannot be forced to disclose confi-
dential 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.
