Discovery (law)

[2] Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order.

[4] At some point between the reign of Elizabeth I (1558–1603) and the late seventeenth century, positions were gradually replaced by interrogatories: written questions which the defendant was required to truthfully respond to under oath in his answer to the bill, based on information within his own personal knowledge as well as documents in his possession.

[11] In contrast, at trial in a common law court, the witness might be subject to "severe and rapid cross-examination" without sufficient time for reflection or deliberation, thereby causing them to "misrepresent facts, from infirmity of recollection or mistake".

It continued to be used as an evidence preservation device in aid of actions at law, but it also became the standard method for developing the factual record to be used in courts of equity as derived from the knowledge of third-party witnesses (not merely those who were old or dying).

It is generally believed that this came about because the early Chancellors and the masters who assisted them were clerics with training in Roman and canon law, and therefore had some knowledge of the inquisitorial system as it functioned in ecclesiastical courts.

It is this quasi-inquisitorial procedure to which the United States Congress was referring in an 1802 law providing that "in all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions.

"[13][15] The next major development (which would remain a unique feature of American and Canadian discovery) occurred under the supervision of Chancellor James Kent of the New York Court of Chancery during the early 19th century.

He was trying to respond to the obvious defect of traditional depositions: since parties could not adjust their questions on the fly, they had to propound broadly drawn interrogatories, and in turn elicited "long and complicated accounts" of the facts that were difficult for masters to summarize in writing.

The New York reforms went much farther, by directly merging common law and equity procedure (which would also happen in England in the early 1870s), and by expressly authorizing pretrial oral examinations of both opposing parties and third-party witnesses, the basis of the modern deposition.

In fact, the New York code of civil procedure (brought about by David Dudley Field II) went so far as to abolish written interrogatories.

[17] A major flaw, though, of the New York code of civil procedure was that it only allowed parties to seek discovery on issues on which they would have the burden of proof at trial.

[18] This caused lawyers for defendants to plead fictional defenses in answers, because they still could not directly pursue discovery into the plaintiff's claims.

Although depositions were still taken in front of court-appointed examiners, their role had been reduced to the preparation of summary narratives to be relied upon as evidence by the court.

Subsequent amendments in 1893 and 1912 eliminated the deposition's traditional role as an equitable factfinding device by first allowing and then requiring oral testimony in open court in trials of federal suits in equity, thereby reducing the deposition to its modern role in American civil procedure as a discovery and evidence preservation device.

[27] In relation to the second approach, despite self-collection being a hot topic in eDiscovery,[28] 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.

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 or expense in complying and for other reasons.

Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" Federal Rules of Civil Procedure.

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.

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.

The use of discovery has been criticized as favoring the wealthier side in a lawsuit, by enabling parties to drain each other's financial resources in a war of attrition.

Investigators and prosecutors need to be aware of the delicate questions which arise when both the right to a fair trial and the privacy of complainants and witnesses are engaged.

When seeking to obtain and review such material, investigators and prosecutors should be aware that these lines of inquiry may engage that individual's Article 8 rights and those rights in respect of other parties within that material.Criminal disclosure interacts closely with the obligations placed on investigators to undertake all reasonable lines of inquiry, whether they point towards or away from the suspect.

Typically, third party material includes mobile device data; CCTV; and medical, therapeutic or local authority records.

[50] Access to third party material, especially in rape and serious sexual assault cases (RASSO), has come under heavy criticism from groups representing victims of these crimes.

[55] Recent guidance and legal judgments, including the Court of Appeal case of R v Bater-James & Anor [2020] EWCA Crim 790[56] and the mobile phone extraction report by the Information Commissioner's Office[57] have set out detailed principles for accessing third party material - especially in the case of mobile and digital information.

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.

For many types of cause of action (but not for example personal injury claims, which have their own additional parts of procedure rules to follow) disclosure is governed by Part 31 of the Civil Procedure Rules (CPR), and its linked Practice Direction (PD) 31B on disclosure of electronic documents, adopted in October 2010.

[58] The purpose of the Practice Direction is "to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner".[58]: Para.

[60] This article incorporates public domain material from judicial opinions or other documents created by the federal judiciary of the United States.