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Encyclopedia > Discovery (law)
Civil Procedure
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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). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with Court Rules / Codes, define the steps that a person involved in a civil lawsuit can, may, or can not take. ... In law, jurisdiction from the Latin jus, juris meaning law and dicere meaning to speak, is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. ... Subject matter jurisdiction is a legal term used in civil procedure to indicate that a case must be entered in the proper court of law based on the nature of the claim. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... Proper venue is one requirement for a court to be able to hear a case. ... A change of venue is the legal term for moving a trial to a new location. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original courts district. ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... Service of process is the procedure employed to give legal notice to a person (defendant etc. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... In law, a class action is an equitable procedural device used in litigation for determining the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. ... The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453, and 1711-1715, grants federal courts original jurisdiction over certain mass actions and class actions (forms of civil action) in which the amount in controversy exceeds $5 million, and any of the members... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... The reply is a response by plaintiff to defedants answer. ... A Counterclaim is made by the defendant to a civil procedure, in a main actions against the plaintiff or against the plaintiff and other persons. ... A cross-claim is a claim brought against a co-party in the same side of a lawsuit. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Interpleader is a device allowed in U.S. civil litigation. ... In law, interrogatories 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 evidence and help to determine in advance what facts will be presented at any trial in the case. ... Deposition is a word used in many fields to describe different processes: In law, deposition is the taking of testimony outside of court. ... 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 a court. ... Summary judgment in U.S. legal practice is a judgment awarded by the court prior to trial, based upon the courts finding that: (1) there are no issues of material fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party... 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 plaintiffs objection. ... In law there are two main meanings of the word settlement. ... In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute. ... 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, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... A jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law. ... The phrase voir dire derives from Middle French; in modern English it is interpreted to mean speak the truth and generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being invited to sit on a jury. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... A judgment or judgement (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, or J.N.O.V. for short (English Judgment + Latin Non Obstante Veredicto) is the practice in American courts whereby the presiding judge in a civil case may overrule the decision of a jury and reverse or amend their verdict. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ... It has been suggested that this article or section be merged with Trial de novo. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ... In law, damages refers either to the harm suffered by a claimant in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm. ... Attorneys fees or attorneys fees are the costs of legal representation that an attorneys client or a party to a lawsuit incurs. ... The American Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... The English Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... This law-related article does not cite its references or sources. ... See also Wikipedias Law Portal. ... A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal 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). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... A subpoena is a writ commanding a person to appear under penalty (from Latin). ... In law, a deposition is evidence given under oath and recorded for use in court at a later date. ...

Contents


Discovery in the United States

In the law of the United States, discovery is wide-ranging and can involve any material which is relevant to the case excepting information which is privileged or information which is the work product of the other side. The law of the United States was originally largely derived from the common law of the system of English law, which was in force at the time of the Revolutionary War. ... This article is about a United States legal term. ... Attorneys work product is a term used in American civil procedure to describe documents developed by one partys attorney in preparation for or anticipation of a lawsuit. ...


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. In law there are two main meanings of the word settlement. ...


At the federal level

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 US federal court system. 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: This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ...


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. 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. Firstly, anything legally privileged (Attorney-client, Doctor-patient, etc) is generally off-limits. Secondly, the work-product rule protects tangible items created in anticipation of the litigation (e.g. A memorandum from an attorney outlining his strategy in the case). Protecting work-product is considered in the interest of justice since otherwise an attorney's complete legal strategy could be exposed before trial. Thirdly, something that is too burdensome for the other person or party to comply with compared to the minimal relevance it would have on the case. This is called a protective order defined in subdivision (c).


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.


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 evidence given under oath and recorded for use in court at a later date. ...


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.


29. Stipulations Regarding Discovery Procedure [5] Miscellaneous information.


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.


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.


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.


33. Interrogatories to Parties [9] Governs Interrogatories, which are written questions to an opposing party. 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. 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 evidence and help to determine in advance what facts will be presented at any trial...


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. 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.


35. Physical and Mental Examination of Persons [11] Regulates physicals and psychological evaluations of parties (i.e. Suing for health damages for asbestos, the defendant may require you to see their own doctor (usually only with a court order).


36. Requests for Admission [12] Allows parties to simply ask the opposing party to admit or deny a certain part of their claim. Helps narrow issues for trial and discovery.


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 protected (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.


Criticism of American discovery

The use of discovery has been criticized as favoring the wealthier side, since one tactic is to make information requests which are expensive and time-consuming for the other side to fulfill. In a scathing critique of the American legal profession, attorney Cameron Stracher described a variety of unpleasant tactics common in the United States, and concluded:

With the noble sentiment of "leveling 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. "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. 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. Tort reform is the phrase used by its advocates who claim it is a change in the legal system to reduce litigations alleged adverse effects on the economy. ...


Dictionary definition

Black's Law Dictionary (2004, 8th edition) also states that discovery is: link title Blacks Law Dictionary, 7th edition Blacks Law Dictionary has traditionally been regarded as the definitive legal dictionary for the law of the United States. ...

1. The act or process of finding or learning something that was previously unknown <after making the discovery, the inventor immediately applied for a patent>.
2. Compulsory disclosure, at a party's request, of information that relates to the litigation <the plaintiff filed a motion to compel discovery>. The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production. 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>.

An inventor is a person who creates new inventions, typically technical devices such as mechanical, electrical or software devices or methods. ... A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... This article is in need of attention from an expert on the subject. ... To compel one to present information to a jury is done by order of a judge. ... 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 evidence and help to determine in advance what facts will be presented at any trial... Deposition is a word used in many fields to describe different processes: In law, deposition is the taking of testimony outside of court. ...

External links

References

  1. ^ 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.

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