| Civil Procedure in the U.S. |
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In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to The Federal Rules of Civil Procedure (FRCP are rules governing Civil procedure in United States district (federal courts that is court procedures for Civil Civil procedure doctrines are rules developed by Case law as opposed to being set down in Codes or Legislation, which together with Court In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority Subject-matter jurisdiction is the authority of a Court to hear cases of a particular type or cases relating to a specific subject matter In United States law, diversity jurisdiction is a concept used in Civil procedure to refer to the situation in which a U Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property In the United States, removal jurisdiction refers to the right of a Defendant to move a Lawsuit filed in state Court to the Federal district Venue is the location where a case is heard In the United States, the venue is either a county (for cases in state court or a district or division (for cases in federal court A change of venue is the Legal term for moving a trial to a new location In Law as practiced in countries that follow the English model a pleading is a formal written statement filed with a Court by parties in a Civil action A legal motion is a procedural device in Law to bring a limited contested matter before a Court for decision Service of process is the procedure employed to give Legal notice to a person (such as a defendant of a Court or administrative body's exercise of In general use a complaint is an expression of displeasure such as poor service at a store or from a Local government, etc In the law a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue A Case Information Statement (or Cover Sheet) is a document which is filed with a Court clerk at the commencement of a civil Lawsuit in many In Law, a class action or a representative action is a form of Lawsuit where a large group of people collectively bring a claim to court The US Class Action Fairness Act of 2005, 28 USC Sections 1332(d 1453 and 1711-1715 expanded federal jurisdiction over many large Class-action A demurrer is a legal Pleading filed by a party defending against claims or defenses in a lawsuit An answer was originally a solemn assertion in opposition to some one or something and thus generally any counter-statement or defense a reply to a question or objection or a correct solution An affirmative defense is a category of defense used in Litigation between private parties in Common law Jurisdictions, or more familiarly The reply is a response by Plaintiff to Defendant 's Answer. A reply occurs only when defendant has asserted a counterclaim or the court has ordered A counterclaim is made by the Defendant to a civil proceeding, in a main action against the Plaintiff or against the plaintiff and other people A cross-claim is a claim brought against a co-party in the same side of a lawsuit Criminal law Joinder in Criminal law is a legal term which refers to the inclusion of additional Counts or additional Defendants on an Impleader is a procedural device before trial in which one party joins a third Party into a lawsuit because that third party is Liable to an original Interpleader is a form of action originally developed under equity jurisprudence In law intervention is a procedure to allow nonparties to join ongoing Litigation, either as a matter of right or at the discretion of the court without the permission 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 In Law, a deposition is witness testimony given under oath and recorded for use in court at a later date Default judgment is a binding Judgment in favor of the Plaintiff when the Defendant has not responded to a Summons or has failed to appear before For the simplification and shortening of a longer text see Summary. Voluntary dismissal is when a law suit is terminated by request of the Plaintiff (the party originally bringing the suit to court Involuntary dismissal is the termination of a court case despite the Plaintiff 's objection For other uses of settlement including legal uses see Settlement. A party is a Person or group of persons that compose a single Entity which can be identified as one for the purposes of the Law. A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit A defendant or defender ( Δ in Legal shorthand) is any party who is required to answer the Complaint of a Plaintiff A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them Voir dire (IPA /vwɑr dir/ is a phrase in Law which derives from Anglo-Norman. Burden of proof (onus probandi is the obligation to prove Allegations which are presented in a Legal action. A judgment (see spelling note below in a Legal context is synonymous with the formal decision made by a Court following a Lawsuit. Judgment as a matter of law (JMOL is a motion made by a party during trial claiming the opposing party has insufficient evidence to reasonably support its case Renewed judgment as a matter of law (JMOL is the partner of Judgment as a matter of law in American federal courts Judgment notwithstanding the verdict, also called judgment non obstante veredicto or JNOV) is a type of Judgment as a matter of law (JMOL that In Law, a motion to set aside judgment is an application to overturn or set aside a Court 's Judgment, Verdict or other final ruling in a case In Law, the expression trial de novo means a "new trial " by a different tribunal ( de novo is a Latin expression meaning 'afresh' 'anew' A legal remedy (also judicial relief) is the means a Court of law, usually in the exercise of civil law jurisdiction enforces a Right, imposes An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful Attorney fees (note that the use of the word 'attorney' connotes lawyers broadly solicitors and barristers are the costs of legal representation that an attorney's client or a party In the field of Law and economics, the American Rule is a rule regarding assessment of Attorneys' fees arising out of Litigation. In the field of Law and economics, the English Rule is a rule regarding assessment of Attorneys' fees arising out of Litigation. A declaratory judgment is a Judgment of a Court in a Civil case which declares the rights duties or obligations of each party in a Dispute. In Law, an appeal is a process for requesting a formal change to an official decision A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the Prerogative writs in the Common Certiorari (ˌsɚʃioʊ('rɛri 'rɑri is a legal term in Roman, English, Philippine and American law referring to a type of Writ Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to A subpoena (səˈpiːnə is commonly defined as a written command to a person to Testify before a Court or be punished In Law, a deposition is witness testimony given under oath and recorded for use in court at a later date
Civil Discovery in the United States
Under the law of the United States, civil discovery is wide-ranging and can involve any material which is relevant to the case excepting information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. The law of the United States was originally largely derived from the Common law system of English law, which was in force at the time of the Revolutionary Attorney-client privilege is a legal concept that protects communications between a client and his or her Attorney and keeps those communications confidential In American Civil procedure, the work-product doctrine protects materials prepared in anticipation of Litigation from discovery by opposing counsel (Criminal discovery rules may differ from those discussed here. ) Electronic discovery or "e-discovery" is used when the material is stored on electronic media. Electronic discovery, or "e-discovery" refers to discovery in Civil litigation which deals with information in electronic format also referred Electronic media are media that utilize Electronics or Electromechanical energy for the End user ( Audience) to access the content
In practice, most civil cases in the United States are settled after discovery. After discovery, both sides usually are in agreement about the strength of each side's case and this produces a settlement which eliminates the expense and risks of a trial. For other uses of settlement including legal uses see Settlement.
At the federal level
Discovery in the United States is unique compared to other common law countries. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive 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 US federal court system. The Federal Rules of Civil Procedure (FRCP are rules governing Civil procedure in United States district (federal courts that is court procedures for Civil Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" [1]. This chapter consists of rules 26 to 37, which are further described below:
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
[2] The most substantial rule, which guides the discovery process.
Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.
However, there are limits to discovery. §2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests, if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in §3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e. In American Civil procedure, the work-product doctrine protects materials prepared in anticipation of Litigation from discovery by opposing counsel g. , a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. §4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. §5 generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient, etc. Attorney-client privilege is a legal concept that protects communications between a client and his or her Attorney and keeps those communications confidential In the laws of many Common law jurisdictions the concept of legal Privilege, or the rule that certain conversations are so private and confidential that they cannot be used ), and requires the production of a "privilege log" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.
Subdivision (c) provides for protective orders.
Subdivision (d) specifies the times at which parties may employ the various methods of discovery.
Subdivision (e) provides for supplementation, which requires a person to correct any submitted information as it is necessary. For example, if you submit your medical records, and then your doctor calls you to say a crucial medical test just came in, you may be required to send that new report to the other party without being specifically requested to do so. Subdivision (f) provides a special meeting between the parties to organize their discovery process; this is a required step. Subdivision (g) is the good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party.
Rule 27. Depositions Before Action or Pending Appeal
[3] Guides depositions taken before the suit begins or after the trial ends. In Law, a deposition is witness testimony given under oath and recorded for use in court at a later date
Rule 28. Persons Before Whom Depositions May Be Taken
[4] Further regulates basic requirements of a deposition, e. g. a court reporter must be present. Depositions are considered an expensive method of discovery in part because of these official requirements.
Rule 29. Stipulations Regarding Discovery Procedure
[5] Miscellaneous information.
Rule 30. Deposition Upon Oral Examination
[6] Main deposition rule in regard to actual procedure. Limits depositions to only one day of questioning, for seven hours during that one day. Any more must be approved by court order or stipulation of the parties involved. Rule also provides for times when an attorney may intervene and direct his client not to answer the question. An attorney is restricted in objecting to only three factors: 1) To preserve a privilege, 2) preserve a court order, or 3) to prevent any harassing questions.
Rule 31. Depositions Upon Written Questions
[7] A rarely used, borderline obsolete method of deposition by sending a court reporter with a written list of questions to a witness. The reporter, not an attorney, questions the witness. This rule is really a combination of a deposition with an interrogatory. Used in rare situations such as deposing someone in difficult to find places such as remote locations or prisons.
Rule 32. Use of Depositions in Court Proceedings
[8] How the deposition can be used in court. Usually testimony in court is preferred, but if a witness dies or flees the country before trial, a deposition may be read into the record.
Rule 33. Interrogatories to Parties
[9] Governs Interrogatories, which are written questions to an opposing party. 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 Limited to twenty-five questions without special court order. May be completed by counsel, not the witness himself; because of that, of limited use in most cases.
Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
[10] In some cases, a party may simply allow free access to enter its property and inspect its documents as it sees fit. A request for production is a legal request for documents electronically stored information or other tangible items For example, plaintiff requests some files which are part of a massive collection the defendant did not organize well. Defendant simply lets the plaintiff rummage through, placing the burden on the other party. In practice this rule is rarely used as it requires a party to give up control of their information and is therefore too risky for most lawyers. However it is a method of avoiding time and cost in responding to broad discovery requests. May also be used for land inspection in certain cases, e. g. so a plaintiff may enter the defendant's land to inspect a defective feature.
Rule 35. Physical and Mental Examination of Persons
[11] Regulates physicals and psychological evaluations of parties (e. A psychological evaluation or mental examination is an Examination into a person's Mental health by a mental health professional such as a Psychologist g. Suing for health damages for asbestos, the defendant may require you to see their own doctor (usually only with a court order)).
Rule 36. Requests for Admissions
[12] Allows parties to simply ask the opposing party to admit or deny a certain part of their claim. 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 Helps narrow issues for trial and discovery.
Rule 37. Failure to Make or Cooperate in Discovery; Sanctions
[13] In case a party does not respond to a discovery request, this rule allows sanctions to be placed upon them. In objecting to a discovery request as proclaimed (see rule 26(b)(2)) a party must write back to the other party their reasons for not answering. Both parties are then required to confer in good faith to reach an agreement. Failure to do so can result in fines for the offending party. Failing an agreement, the original party requesting the information must then petition the court for an order to force the other party to answer. Should the other party still refuse to answer, it may be fined, have its evidence prevented from being admitted, or have its claim dismissed partially or entirely.
At the state level
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.
California
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 (see http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20). A significant number of appellate court decisions have interpreted and construed the provisions of the Act.
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. A party may only propound thirty-five written interrogatories on any other single party, and 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 (e. g. , http://www.courtinfo.ca.gov/forms/documents/disc001.pdf) 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.
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. Thirty-five 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.
Criticism of American discovery
The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other's financial resources in a war of attrition. For example, one can make information requests, which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on. In a scathing critique of the American legal profession, attorney and writer Cameron Stracher described a variety of unpleasant tactics common in the United States, and concluded:
| “ | With the noble sentiment of "levelling the playing field" so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. Cameron Stracher is a writer part-time law professor and former lawyer "Discovery" is anything but . . . Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal. [1] | ” |
Tort reform supporters argue that such tactics are often used by plaintiffs' lawyers to impose costs on defendants to force settlements in unmeritorious cases to avoid the cost of discovery. Tort reform refers to the idea of changing the rules applicable to the Law of Tort. Victim's rights advocates, on the other hand, believe that the opposite is true: defendants typically have greater resources than plaintiffs and, accordingly, they impose costs on parties deserving compensation by dragging out the litigation process as opposed to offering a fair settlement.
Dictionary definition
Black's Law Dictionary (2004, 8th edition) also states that discovery is:
- 1. Black's Law Dictionary is the most widely-used Law dictionary for the Law of the United States. The act or process of finding or learning something that was previously unknown <after making the discovery, the inventor immediately applied for a patent>. An inventor is a person who creates or discovers a new method form device or other useful means A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an
- 2. Compulsory disclosure, at a party's request, of information that relates to the litigation <the plaintiff filed a motion to compel discovery>. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit A legal motion is a procedural device in Law to bring a limited contested matter before a Court for decision To compel one to present information to a Jury is done by order of a Judge. The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production. 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 Although discovery typically comes from parties, courts also allow limited discovery from nonparties.
- 3. The facts or documents enclosed <the new associate spent all her time reviewing discovery>.
UK Discovery
The same process in Britain is commonly known as disclosure, and is always used in complex civil litigation. The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom, the UK or Britain,is a Sovereign state located As in the USA, certain documents are privileged, such as letters between solicitors and experts. Full details are given in Legal professional privilege (England & Wales). In England and Wales, the principle of legal professional privilege has long been recognised by the Common law.
See also
External links
- Litigation Support Vendors Association
- Litigation Support Technical Standards
- Discovery Resources
- Federal Rules of Civil Procedure: Depositions and Discovery
- Technology Counsel
- Electronic Evidence & e-Discovery Forum, London
- The Sedona Conference
References
- ^ 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. Electronic discovery, or "e-discovery" refers to discovery in Civil litigation which deals with information in electronic format also referred A subpoena ad testificandum is a Court summons to appear and give oral testimony for use at a hearing or trial A subpoena duces tecum ( Latin for "bring with you under penalty of punishment" is specific form of a Subpoena ( Summons, literally The Federal Rules of Civil Procedure (FRCP are rules governing Civil procedure in United States district (federal courts that is court procedures for Civil Cameron Stracher is a writer part-time law professor and former lawyer
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