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. In American law, 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.

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. The use of discovery has been criticized as favoring the wealthier side as one tactic is to make requests of information which are expensive and time consuming for the other side to fulfill. 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.

Federal Discovery in the United States

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" ^*. This chapter consists of rules 26 to 37, which are further described below:

26. General Provisions Governing Discovery; Duty of Disclosure ^* 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 ^* Guides depositions taken before the suit begins or after the trial ends.

28. Persons Before Whom Depositions May Be Taken ^* 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 ^* Miscellaneous information.

30. Deposition Upon Oral Examination ^* 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 ^* 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 ^* 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 ^* 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.

34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes ^* 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 ^* 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 ^* 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 ^* 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.

Legal definition

Black's Law Dictionary (2004, 8th edition) also states that discovery is:

1. The act or process of finding or learning something that was previously unknown inventor immediately applied for a patent>.

2. Compulsory disclosure, at a party's request, of information that relates to the litigation 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 .

Civil procedure

External links

• Discovery Resources
• Federal Rules of Civil Procedure: Depositions and Discovery
• Sample Discovery Documents