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,
The formal discovery process for federal criminal prosecutions is outlined in the Federal Rules of Criminal Procedure, Rule 16.
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:
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 
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.
Faced with grinding discovery demands that distract employees from operating the business, even blameless defendants settle.
Anonymous Online Speakers v. United States District Court for the District of Nevada (In re Anonymous Online Speakers), 611 F.3d 653 (2010), is a decision by the Ninth Circuit lowering the standard a plaintiff must meet to compel identification of anonymous posters on the Internet.Quixtar, Inc. sued its competitor Signature Management TEAM, LLC for tortious interference with existing contracts. Quixtar claimed that TEAM created an Internet smear campaign involving anonymous postings of content that discredited Quixtar and its business practices. The district court ordered TEAM to identify three of the five anonymous authors who posted content about Quixtar. The Anonymous Online Speakers petitioned to the Ninth Circuit, challenging the district court’s order. Quixtar cross petitioned to the Ninth Circuit for a writ of mandamus which, if granted, would force TEAM to identify the remaining speakers. Since neither Quixtar nor TEAM demonstrated "an entitlement to the extraordinary relief" that would be granted by the writ, both parties were denied their requested petitions.
The Ninth Circuit recognized that First Amendment protection applied to online speech. The Ninth Circuit decided that the nature of the speech should determine the standard used to protect online speakers and their speech. Historically, courts have awarded greater protection for political speech than commercial speech. The Ninth Circuit classified the Internet postings and video content as commercial speech because they went to “the heart of Quixtar’s commercial practices and its business operations.”The district court, in this case, used the Cahill standard which required that parties "submit sufficient evidence to establish a prima facie case for each essential element of the defamation claim." The Ninth Circuit, rejected the application based on the stringency of the test as applied to commercial speech, thereby denying the Anonymous Online Speakers their petition.
Anonymous Online Speakers v. United States District Court for the District of Nevada presented an issue of first impression in the Ninth Circuit regarding First Amendment claims of anonymous online speakers involving commercial speech. The Ninth Circuit instructed lower courts not to apply heightened standard, such as Cahill, to commercial speech during discovery disputes.Deposition (law)
A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination.
Depositions developed in Canada and the United States in the nineteenth century. Depositions are a part of the discovery process in which litigants gather information in preparation for trial. In nations that do not provide for depositions, testimony is usually preserved for future use by way of live testimony in the courtroom, or by way of written affidavit. Some jurisdictions recognize an affidavit as a form of deposition, sometimes called a "deposition upon written questions." While in common law jurisdictions such as England and Wales, Australia, and New Zealand recording the oral evidence of supporting witnesses ('obtaining a statement') is routine during pre-litigation investigations, having the right to pose oral questions to the opposing party's witnesses before trial is not.Document review
Document review (also known as doc review), in the context of legal proceedings, is the process whereby each party to a case sorts through and analyzes the documents and data they possess (and later the documents and data supplied by their opponents through discovery) to determine which are sensitive or otherwise relevant to the case. Document Review is a valuable main staple of the type of work performed by attorneys for their clients, though it is increasingly common for the work to be performed by specialized document review attorneys.Some types of cases that typically require large numbers of documents to be reviewed are litigation, mergers and acquisitions, and government and internal investigations (including internal audits). Regarding litigation, documents reviewed by attorneys are obtained through the discovery process, which is generally governed by rules of procedure for the presiding court. In cases in United States Federal Courts the rules related to discovery are Federal Rules of Civil Procedure (F.R.C.P.) 16, 26, 33, 34, 37, and 45 which were amended in 2006 to include electronically stored information.
Though attorneys do still review hard copy documents today, most documents are reviewed electronically either as native files that were originally created electronically or as electronic copies of documents that were originally created in a hard copy format. During the doc review process, each document may be tagged according to certain categories, including whether it is relevant to an issue in the case, whether it is responsive to a discovery request (and therefore may need to be produced as part of the discovery process), whether it is confidential, or whether it is attorney client or otherwise privileged. When large amounts of documents need to be reviewed electronically, often a system is set up that includes review software. This system is known as a platform. The terms electronic discovery and technology assisted review have arisen to reflect the dominance of electronically stored information and the increasing use of machine learning and other technologies to help curb the growing cost of document review.At times, even with the use of electronic document review platforms the volume of documents that need to be reviewed by an attorney for a case can be expansive and many attorneys including even highly staffed international law firms will need to obtain assistance beyond their standard resources. In these instances other attorneys are often brought into the case to assist specifically with the review of the documents. Traditionally, the additional attorneys needed to assist were hired on directly by attorneys and firms, or they may have worked as independent contractors. In recent years, many legal staffing companies have begun to act as intermediary employers between the law firms and the attorneys hired to assist with the document review.
This trend has led to controversy in the legal profession as more and more of the work traditionally performed by U.S. attorneys is being outsourced to countries like India as a result of the legal staffing companies attempting to drive the rates down to remain competitive.
Traditional markets in the United States where many attorneys and firms typically hire additional attorneys to assist with document review are Washington, D.C., New York City, Los Angeles, Houston, and Chicago. In Canada many attorneys assist with document review in Toronto.
In Europe the biggest market for document review is typically London.Duty of disclosure
In U.S. legal procedure, each party to a lawsuit has the duty to disclose certain information, such as the names and addresses of witnesses, and copies of any documents that it intends to use as evidence, to the opposing party. This duty is subject to certain exceptions, as outlined in the Federal Rules of Civil Procedure; furthermore, the rules applicable in state courts vary from state to state.
In United States patent law, during patent prosecution, an applicant has a duty to disclose all information material to patentability. Breach of this duty can lead to a holding of inequitable conduct, in which case the patent is unenforceable.Electronically stored information (Federal Rules of Civil Procedure)
Electronically stored information (ESI), for the purpose of the Federal Rules of Civil Procedure (FRCP) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.ESI has become a legally defined phrase as the U.S. government determined for the purposes of the FRCP rules of 2006 that promulgating procedures for maintenance and discovery for electronically stored information was necessary. References to “electronically stored information” in the Federal Rules of Civil Procedure (FRCP) invoke an expansive approach to what may be discovered during the fact-finding stage of civil litigation.Rule 34(a) enables a party in a civil lawsuit to request another party to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form...Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.Fraser v HM Advocate
Fraser v Her Majesty's Advocate (2011) UKSC 24 is a decision of the Supreme Court of the United Kingdom relating to the effect of non-disclosure of evidence to the defence at trial and the role of the Supreme Court of the United Kingdom in Scots criminal law.Initial conference
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.Inspection of documents
In pre-trial discovery, parties may have the right to inspect documents that are relevant to the case. In civil cases, the concept of "documents" has been interpreted broadly, and it generally includes any item that contains descriptive information, including electronic records.Interrogatories
In law, interrogatories (also known as requests for further information) 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.Krinsky v. Doe 6
Krinsky v. Doe 6, was a decision by the California Court of Appeal, Sixth District, addressing the evidentiary standard required of plaintiffs seeking the identification of anonymous Internet posters. The case addressed defamation and the right to anonymous speech on the Internet. Plaintiff Lisa Krinsky sued Doe 6, an anonymous poster to Yahoo! message boards, for defamation. Krinsky served a subpoena to Yahoo! for Doe 6's identity. Doe 6 filed a motion to quash the subpoena, "contending that he had a First Amendment right to speak anonymously on the Internet."
While the court declined to adopt more stringent unmasking standards used by other courts, the Appellate Court nonetheless held that the language of Doe 6's posts were not actionable defamatory statements because they did not assert objective facts about the plaintiff. Rather, it held that Doe 6's posts "fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment."Legal hold
A legal hold is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated.
The legal hold is initiated by a notice or communication from legal counsel to an organization that suspends the normal disposition or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation. Legal holds can encompass business procedures affecting active data, including backup tape recycling.Recent amendments to the United States Federal Rules of Civil Procedure (FRCP) address the discovery of electronically stored information (ESI) (aka e-discovery), expanding the use of a "legal hold" beyond preservation of paper documents. The amendments were written in anticipation of legal arguments and tactics related to the production of ESI, such as the cost and difficulty of producing such ESI and claims that such ESI was missing, deleted, or otherwise inaccessible when it really wasn’t the case. These changes took effect December 1, 2006 and require organizations to hold all electronic records until each legal matter is formally settled, even if an organization only reasonably anticipates litigation.Reciprocal discovery
In United States criminal procedure, the Federal government and certain states have reciprocal discovery laws that compel defendants to disclose some information to prosecutors before trial. Within the federal court system, this material is referred to as reverse Jencks Act material, after the United States Supreme Court case which established the principle, Jencks v. United States.In the United States, prosecutors are required to disclose to defendants information that is potentially exculpatory, whether or not that information is requested by the defendant. When a defendant exercises the right to request additional discovery, that is, information that the prosecutor is legally compelled to provide only upon the defendant's request, the prosecutor is allowed to request reciprocal discovery, obtaining certain information from the defendant that is comparable in nature to the information that the prosecutor must provide to the defendant. The prosecutor's right to demand discovery is not as broad as the defendant's, as it is limited by the defendant's Fifth Amendment protection against self-incrimination.Once reciprocal discovery is invoked, information that a defendant must disclose upon a prosecutor's request typically includes:
Access to physical evidence in the possession of the defendant for purpose of inspection and testing, and
Reports prepared by defense expert witnesses.The prosecution may also gain rights to notice of specific affirmative defenses, such as whether the defendant intends to raise an alibi defense or insanity defense, and have discovery rights relating to those defenses.Request for admissions
A request for admissions (sometimes also called a request to admit) 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. federal court system, they are governed by Rule 36 of the Federal Rules of Civil Procedure.Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items made in the course of litigation. 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 matter of the lawsuit. For example, a party in a court case may obtain copies of e-mail messages sent by employees of the opposing party.
The responding party is required to furnish copies of any documents that are responsive to the request, except for those that are legally privileged. The responding party also can submit a response to the requestor explaining why the documents cannot be produced. For example, the responding party may indicate that documents are unavailable because they have been destroyed, that it would be unduly burdensome to produce the documents, or that the documents are not in possession of the responding party. However, the requestor then may file a Motion to Compel discovery to ask the court to order the responding party to produce documents.
The rules governing requests for the production of documents vary from jurisdiction to jurisdiction; in the U.S. Federal court system, such requests are governed by Rule 34 of the Federal Rules of Civil Procedure.Second request
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.Section 1782 Discovery
Section 1782 of Title 28 of the United States Code is a federal statute that allows a litigant (party) to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals."The text of Section 1782(a) reads as follows:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person. ... The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
In essence, an applicant under Section 1782 merely needs to show three things:
(a) it is an "interested person" in a foreign proceeding,
(b) the proceeding is before a foreign "tribunal," and
(c) the person from whom evidence is sought is in the district of the court before which the application has been filed.The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence.Uniform Interstate Depositions and Discovery Act
The Uniform Interstate Depositions and Discovery Act (UIDDA) is a model statute adopted by a majority of U.S. states to establish a uniform process for obtaining depositions and discovery in concert with other participating states. In 2007 the Uniform Law Commission (then primarily referred to as the National Conference of Commissioners on Uniform State Laws) promulgated, and recommended all states enact, the UIDDA. To identify at which stage of enactment the various states and territories are, ULC maintains an up-to-date map.