Legal Aspects of Discovery Research Paper

1. The Aims Of Discovery

In common law systems, discovery is viewed as too complex and costly for small claims and ordinarily is unavailable in those settings. In larger cases, discovery normally occurs after the parties have filed their initial pleadings, which make clear the general character of the dispute and, in some cases, the main points of contention. If a claim or defense is legally invalid on its face, the court can resolve the dispute at that point. But if the dispute concerns an issue of fact, the pleadings will not suffice. The ultimate test of disputed facts is a trial, but trials are expensive both for the parties and for the legal system.

Discovery can improve the handling of factual disputes by making each party disclose, before trial, the evidence it plans to offer. Such disclosures can make trial more efficient by clarifying disputed issues, permitting the parties to edit out irrelevant or redundant evidence, and reducing unfair surprise and consequent mistrials or adjournments.

Discovery can also make trials more accurate by compelling production of information that otherwise would not be presented because it is harmful or embarrassing to the person who controls it. Greater accuracy might appear noncontroversial, since it benefits right-doers and harms wrong-doers. But if a class of plaintiffs or defendants tend to control a disproportionate share of relevant information, accuracy-promoting discovery may enable new types of claims and defenses that otherwise would fail outright. For example, although price fixing schemes are unlawful, it may be difficult to prove their existence without compelled discovery of defendants’ business records (James et al. 1992, p. 236).

Discovery may also improve the quality of public and private decisions about whether there should be a trial. It may demonstrate that a factual contention is doomed to fail at trial and can be dismissed summarily. The additional information disclosed (and the costs of disclosure) may also influence the likelihood and terms of settlement.

2. The Law Of Discovery

The United States and England differ in their approach to pretrial discovery. For ease of exposition, the discussion of American law is based exclusively on the Federal Rules of Civil Procedure, which apply only in federal trial courts but have heavily influenced state court practice. The discussion of English law is based exclusively on the Civil Procedure Rules and Practice Directions, which apply in the High Court and county courts.

2.1 Scope And Limitations

A discovery system which aimed only at preventing surprise could limit its scope to evidence that the parties intend to present at trial. For example, with respect to testimonial evidence, English law requires only that parties prepare and submit statements for each witness whom they intend to call at trial summarizing the proposed testimony. (Civil Procedure Rules, Part 32.4). A system that aims for improved accuracy needs a broader principle. England adopts such a principle for documentary evidence, setting the scope of discovery as materials ‘relating to the matters in question in the action,’ which are then defined in terms of their tendency to prove or disprove the claim of any party. (Civil Procedure Rules, Part 31.6.) American discovery extends even further. It reaches ‘any matter … relevant to the claim or defense of any party.’ But unlike English law, the information sought need not have probative weight, provided it ‘appears reasonably calculated to lead to the discovery of admissible evidence’ (Federal Rules of Civil Procedure 26 (b) (1)). Thus, under American law, discovery can be used to identify and pursue investigative leads. In England and all other common law jurisdictions, such discovery is rejected as an improper ‘fishing expedition’ (Jolowicz 2000, pp. 41–5).

Under both English and American law, some relevant information is shielded from discovery. Information within a recognized evidentiary privilege (such as the attorney–client privilege) is immune. Both systems recognize a complete or qualified privilege for materials prepared by attorneys and others in anticipation of litigation. Finally, each system has recently adopted a principle holding roughly that the scope and costs of discovery should be in proportion to the value of the information to be produced. Concerns about commercial confidentiality and invasion of privacy, though frequently raised, rarely operate as a complete bar to otherwise proper disclosure. Instead they are addressed through restrictions on access to and use of the information disclosed.

2.2 Mechanisms For Obtaining Discovery

The only significant form of discovery in English law is disclosure of documents. In cases valued at more than £5,000, each party is routinely ordered to provide a list of all relevant documents in its possession, custody, or control. The party must then produce listed documents on request unless the document is privileged or the burden of producing it would be disproportionate. A party may also file a request with the court for additional document discovery either from another party or from a nonparty. The party seeking discovery must specify the documents sought, demonstrate that they are relevant, and show how their discovery will advance the case. Discovery with respect to witnesses is ordinarily limited to the provision of the summaries of testimony noted above. The deposition, an interview of a witness, taken under oath and steno- graphically recorded, is not available for discovery, but only to preserve the testimony of a witness who cannot attend trial (Civil Procedure Rules, Part 34).

In United States courts, the obligation to make discovery was traditionally contingent upon receipt of a proper demand. But recent amendments oblige each party to provide certain information without request at the outset of the action. A party must identify each person likely to have ‘discoverable information that the disclosing party may use to support its claims or defenses.’ They must also provide copies or descriptions of documents and other tangible things in its possession, custody, or control that it may use for that purpose. Prior to trial parties must identify trial witnesses and exhibits (Federal Rule of Civil Procedure 26 (a)).

Discovery beyond the initial disclosures can be pursued through multiple devices. Broadly framed document demands and depositions both may be used, without leave of court, to seek any information falling within the scope of discovery against any party. Even more striking, if the document or deposition discovery is properly joined with a subpoena (which is also available without leave of court), these devices may be used against any nonparty as well. Other discovery devices, including interrogatories, court ordered physical examinations, and requests for admission, are available only against parties. The most important in practice are interrogatories, written questions which must be answered in writing and under oath. Because the response must include all information available through reasonable investigation, preparing an answer may involve significant data gathering activities.

2.3 Costs

The costs involved in discovery include lawyers’ fees, the time of the responding parties and witnesses, and intangible costs from invasions of privacy and the frictions of adversary litigation. On the public side, costs include judicial time spent in supervising discovery. For out-of-pocket costs such as attorneys’ fees, both the English and American systems have generally followed the standard cost allocation rules applicable for civil litigation. In England that involves awarding the winner’s reasonable costs of discovery against the loser. In America, costs are normally borne by the party who incurred them, with certain exceptions for costs that result from a party’s improper use of, or improper opposition to, a discovery request.

2.4 Sanctions And Judicial Supervision

Discovery can fail in various ways. Deliberate withholding of properly requested information and intentional use of discovery to inflict financial or emotional harm are illegal. But separating intentional misconduct from the assertion of legitimate legal rights is difficult. There are often nonfrivolous legal justifications for discovery conduct that deprives the tribunal of critical information or imposes costs on an opponent, and taking incidental advantage of an opponent’s lack of perspicacity or resources is a well-accepted feature of adversarial ethics. The resulting strategic interaction may lead to underproduction of information or to an escalating cycle of demands, resistance, and disputes (Brazil 1979). The scope of American discovery has made these issues urgent in the United States.

For much of its modern history, discovery has been largely party initiated and controlled. The judge was to be involved only in the event of a dispute concerning the propriety of a request or the adequacy of a response. Compliance was to be assured by the professionalism of the lawyers involved and the threat of judicial sanctions. Available sanctions included monetary penalties, contempt, orders deeming certain matters to have been established against the offending party, and default judgments.

Many American lawyers and judges have come to believe that this essentially reactive enforcement model allows too much abuse and waste. Changes in the legal profession have reduced the potential for easy cooperation between counsel (Gilson and Mnookin 1994). Judges feel they have more important work than to master the details of discovery disputes. Sanctions are an imperfect tool, not draconian enough to eliminate temptations to withhold critical evidence in high stakes cases, but too cumbersome to address the routine tactical jostling that characterizes much discovery.

These concerns have led to reforms designed to cut back on the scope of discovery and to increase judicial control over its initiation. In both England and the United States, reforms have narrowed discovery’s scope, placed renewed emphasis on the concept of proportionality between benefits and costs, and, in England, eliminated some types of discovery altogether. In both countries, the occasions on which advance judicial approval must be sought have been broadened. Finally, in both countries there is an increased emphasis on proactive judicial supervision and participation in the discovery planning process (Marcus 1999, Wolff 1998, Jolowicz 2000).

3. Effectiveness Of Discovery

For many years there was a widespread view, based largely on anecdotal accounts, that American-style discovery generally tends to be unduly costly in proportion to its social benefits. Repeated empirical studies have demonstrated that this view is at best overly simple (Willging et al. 1998, Kakalik et al. 1998, McKenna and Wiggins 1998). Those studies show that even in the categories of civil litigation where discovery is available and in common use, a substantial minority, approaching 40 percent, of filed cases are resolved without any formal discovery, typically through abandonment or settlement. In cases where formal discovery occurs, it typically involves only a few discovery events and moderate costs (measured primarily in terms of lawyer time expended). Finally, in a small percentage of cases, typically involving greater factual complexity and higher stakes, there are more discovery events and much higher discovery costs. Even in this class of cases, costs remain roughly proportional to the amount in controversy. Lawyers believe that in most cases the discovery process works tolerably well, generating about the right amount of information given the needs of the case and at a level of expenditure that is about right in relation to the stakes (Willging et al. 1998, pp. 550–2).

Within this overall pattern, however, there are more or less severe problems of withholding, delay, or waste in a substantial proportion of cases where formal discovery occurs. By some estimates, nearly 20 percent of discovery costs are attributable to such problems (Willging et al. 1998). Some evidence suggests that problems are disproportionately encountered in high stakes, complex, and contentious litigation (Brazil 1980a, 1980b). But others argue that the higher incidence of reported problems in such cases may reflect the larger number of discovery events and the higher proportion of litigation expenditures devoted to discovery, rather than any underlying pathology (Willging et al. 1998). Attempts to moderate the costs of discovery in such cases through judicial management have thus far met with very limited success (Kakalik et al. 1998).

While these studies show that broad discovery is not clearly a failure, they do not demonstrate its success, for several reasons. First, their focus on lawyer time as the measure of cost leaves out costs to clients, nonparty witnesses, and the court system itself. Second, the focus on formal discovery overstates some marginal effects of the discovery rules and omits others. Some information exchanged in formal discovery would be shared voluntarily even if there were no discovery rules, simply to persuade the opponent to abandon its claim or settle (Hay 1994). Neither the production of this information nor the costs of producing it are due to the discovery rules. On the omission side, the studies ignore effects that prospective application of the discovery rules may have on filed and unfiled claims resolved without formal discovery but ‘in the shadow’ of those rules.

Third, current studies say little about how the marginal effects of discovery rules actually influence litigation outcomes and behavior. Are outcomes more accurate? Or are they less accurate, for example because the prospective costs of discovery discourage prosecution or defense of some claims? (Brazil 1980a, at 225). What is discovery’s impact on the likelihood of settlement and how does it generate that impact? On this issue, the theoretical literature suggests several possibilities (Cooter and Rubinfeld 1994, Hay 1994), but the empirical literature is silent.

Finally, the studies do not explore discovery’s impact on real world conduct. The benefits of more accurate adjudication may differ dramatically for different types of cases, and they may be very imperfectly correlated with the practicing lawyer’s conventional measures of a dispute’s importance, such as the amount in controversy (Hay 1994, Kaplow 1994, Bundy 1994).

4. Comparison To Civil Law Approaches

Civil law jurisdictions have much less discovery. The German system is a helpful example, since it is not atypical and has heavily influenced other systems, including Japan, Korea, and Brazil. In the German system, a judge or panel of judges acts as the trier of fact. Party requests for information occur during what amounts to an ongoing hearing and are directed, not to the opposing party, but to the trial judge (Langbein 1985).

German hearings proceed primarily on the basis of the witnesses and documents identified in the parties’ preliminary submissions, which generally do not identify much information harmful to a party’s case. A party can ask the judge to require the production of additional evidence only within limited categories. A party is entitled to all documents referred to in the opposing party’s submissions and to documents to which he has a right of access under the substantive law (typically because of a contract or fiduciary relationship between the parties) (Gerber 1986). Even within these categories, the party must make a stronger demonstration of relevance than in American law: the information must be reasonably likely to influence the court’s determination of a disputed factual issue and described with reasonable particularity. Beyond these categories of information, there is no discovery.

Differences in discovery regimes have produced significant conflict between the United States and foreign states with more restrictive discovery practices. Most of the issues have arisen from efforts to take extensive American-style discovery from defendants who are located in civil law jurisdictions. Some of these issues are now the subject of international agreements, such as the Hague Convention on the Taking of Evidence (Hazard 1998).

Differences between common law and civil law discovery reflect contrasting arrangements for trial, conceptions of adjudication, and commitments to party control of litigation. The common law’s concern for preventing surprise is not matched in civil law systems, whose professional triers of fact exercise greater control over the presentation of evidence, are less likely to be influenced by surprise, and can more readily adjourn to permit rebuttal evidence (Langbein 1985). American discovery came of age when civil litigation was increasingly seen as a law enforcement device, in which ‘private attorneys general’ play an important role (Scott 1975). Conversely, civil law’s ‘relative indifference to the completeness of the evidentiary material submitted to the court’ (Damaska 1997, p. 114) sees adjudication more as resolving disputes on the parties’ terms. Finally, in America, party initiation and control of discovery at least initially sidestepped the steep administrative and political costs of an intrusive judge-directed inquiry into private conduct. In civil law systems, the expectation that expanded discovery would be channeled through overworked career judges—while consistent with civil law traditions—certainly makes it unattractive on both administrative and political grounds.

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