What Types of Evidence Can Be Legally Obtained during the Discovery Process

A feature of the U.S. legal system is the principle that there should be as few surprises as possible during litigation. Since the late 1940s, the federal court system has required disclosure of all relevant facts and documents to the other party prior to trial, and virtually every state has followed suit. This disclosure is achieved through a methodological process called discovery. Discovery takes three basic forms: written discovery, document creation, and repositories. As described above, the scope of the discovery is extremely broad. Rule 26 provides that it may contain anything relating to a party`s claim or defence to a claim. In addition to privileged information, however, there are other limitations. The court hearing an action has considerable discretion to set its own limits to the rules of the investigation. These restrictions are also known as local rules.

Local regulations may limit the number of statements and interrogations. You can also limit the discovery of information that can be found «cumulatively or twice» or information that is already available to the discovering party through other sources. Other restrictions that a court may apply would be to prevent the investigative process from being excessively costly or onerous for a party. For example, a request for discovery may contain documents or records of several hundred or thousands of pages and therefore be too expensive to reproduce. Instead, the court may order the party in possession of the documents to make them available for inspection if the other party wishes to inspect or copy them at the other party`s expense. One should be aware of these and any other restrictions contained in the local rules of the respective jurisdiction when making requests for investigation. See In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003). Major reforms in New York in the late 1840s and England in the early 1850s laid the foundation for the rise of modern discovery by prescribing a clear separation between pleadings and discovery as separate stages of procedural law. Discovery devices were now accessible independently of pleadings. The New York reforms went much further by directly merging common law and fairness procedures (which was also to happen in England in the early 1870s) and explicitly allowing oral examination for discovery at trial of opposing parties and third-party witnesses, the basis of modern testimony. [4] (Until then, detection by operable opposing parties was limited to interrogations.) In fact, the New York Code of Civil Procedure (introduced by David Dudley Field II) went so far as to abolish written examinations.

[7] However, a major error in the New York Code of Civil Procedure was that it only allowed parties to request investigations into matters for which they would have the burden of proof in court. [8] This prompted counsel for the respondent to raise fictitious objections in their replies, as they still could not directly discover the applicant`s allegations. [8] Interrogations are questions that require your version of events and your claims. These can be pre-printed «formal» hearings (also known as Judicial Council forms) or specific questions asked only for your case and called «special» interviews. Questions can range from general (e.g., «What happened on April 26, 2022?») to specific («Do you think the defendant was wearing sunglasses at 2:30 p.m. on April 26, 2022?»). If the questions asked are not fair or difficult to understand, your lawyer will help you decide what to reject. The disclosure is set out in the Federal Rules of Civil Procedure. Rules 26 to 37 specify the procedures and rules governing detection. The scope of discovery, the various methods that can be implemented during discovery, the procedures required, and any applicable requirements and restrictions for obtaining information are included in this set of federal regulations. Rule 26 sets out the scope of disclosure and the obligation of each party to disclose certain types of information.

Rules 27 to 32 set out the rules applicable to statements made in the course of litigation. Rule 33 lays down the rules and procedures for the conduct of hearings. Rule 34 determines the scope of distribution of documents such as maps, diagrams, photographs and other things for discovery purposes. It also identifies similar procedures for access to immovable property in the context of the lawsuit (e.g. Access to a party`s home in a dispute relating to a dispute relating to its sale). Rule 35 focuses on regulating individuals` access to physical and mental examinations. Physical and mental examinations may be a factor in a lawsuit when a person has suffered harm as a result of a person`s negligence or when a person`s mental state at the time of an incident may be a factor in determining a person`s liability. Article 36 governs the presentation of party concessions. Admissions are written documents that contain information that a party voluntarily admits and is therefore no longer challenged in the lawsuit. Concessions may be made, for example, on the basis of the accuracy of the origin of a card or the identity of the author of a letter. Finally, Rule 37 governs the sanctions or penalties that may be imposed on a party that refuses to comply with the rules of investigation.

A 2015 amendment to Rule 37 addresses a party`s failure to retain electronically stored information. These rules are discussed in more detail in this subchapter. Discovery did not exist at common law, but its availability in equity attracted litigants to lawsuits (court proceedings in common law courts). They began to introduce fair disclosure bills in order to get legal action. This led to another innovation in the mid-15th century: the bill to perpetuate the testimony of a potential witness. This was for witnesses whose advanced age or poor health meant they would not survive to testify at a trial trial. [4] In this type of trial, the parties simply argued for written hearings read aloud to the witness by a captain (in or near London) or a lay commissioner (outside London) in a closed trial without the presence of the parties or defence counsel. One employee wrote the witness` oral answers under oath as a paper summary, as if they had been given as a single, coherent third-person account, rather than as first-person answers to individual questions. In other words, the actual sequence of questions and answers was not transcribed word for word as a modern statement. In London, the witness usually signed or marked the story at the end (and sometimes signed at the end of each page), while outside London, the clerk deepened the narrative on parchment (in other words, he copied the text from paper to parchment with legible writing). [5] In any event, the resulting document (paper in or near London, parchment outside London) was sealed in court and was not disclosed or «published» (in the terminology of the time) to the parties or lawyers until shortly before the trial in which it was to be used.

[4] Similarly, regulatory filings can be a very powerful discovery tool. They ask a party to admit or deny certain facts related to the case, and they incur penalties if they do not respond, respond incorrectly or even respond too late. This procedure of ex parte out-of-court investigations was called «testimony». It has continued to be used as a tool for preserving evidence in support of legal claims, but has also become the standard method for developing factual records for use in courts of equity, as they emerge from the knowledge of third-party witnesses (not just elderly or dying). The process of summarizing testimony in narrative form, on which the Lord Chancellor had to rely instead of live testimony in open session, was a kind of autonomous fact-finding process. As suggested by the secretive nature of the proceedings and the absence of parties and counsel, the fairness fact-finding process was fundamentally inquisitorial (i.e., dictated by the courts) rather than adversarial (i.e., directed by the parties). It is generally believed that this happened because the first chancellors and the masters who helped them were clerics trained in Roman and canon law, and therefore had some knowledge of the inquisitorial system as it functioned in ecclesiastical courts. Procedural secrecy was considered absolutely necessary to prevent perjury and witness manipulation; Witnesses would therefore be forced to testify only from memory, and parties would not be able to use the facts disclosed in the testimony as a guideline for their discovery or litigation strategy.