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] In common law jurisdictions, disclosure is a pre-litigation procedure in which either party may, through civil proceedings, obtain evidence from the other party or parties through investigative mechanisms such as hearings, requests for documents, applications for admission, and testimony. [2] Disclosure may be obtained from non-parties by subpoenas. If a request for disclosure is denied, the requesting party may request the assistance of the court by filing a request for compelled disclosure.
[3] “We are in the discovery right now, I hope we will get what we need with this deposit.” Under U.S. law, civil disclosure is broad and may include the disclosure of information reasonably calculated to lead to the discovery of admissible evidence. [17] This is a much broader standard than relevance, as it takes into account consideration of evidence that may be relevant, rather than evidence that is truly relevant. (Relevant issues are dealt with in limine motions before the main hearing and with objections at the main hearing.) [18] Certain types of information are generally protected from detection; This includes information that is inside and resulting from the work of the counterparty. Other types of information may be protected, depending on the nature of the case and the status of the party. For example, minors` criminal records are generally not located, hospital`s peer-reviewed results in cases of medical negligence are generally not available, and, depending on the case, other types of evidence may not be traceable for reasons of confidentiality, compliance difficulties or costs, and for other reasons. (The rules of criminal investigation may differ from those discussed here.) E-discovery refers to the discovery of information stored in electronic form (often referred to as electronically stored information or ESI). [19] In some cases, the investigative process often facilitates pre-trial settlements, including car accident claims.
Once a car accident injury case is filed, the discovery process begins. The goal is to gather as many facts as possible about the accident and the injuries it caused. Disclosure allows the parties to know what evidence can be presented before the trial begins. It is designed to prevent an “ambush trial” where one party only learns the other party`s evidence or witnesses during the trial when it does not have time to obtain answers to the evidence. The next major development (which would remain a unique feature of American and Canadian discovery) took place under the supervision of Chancellor James Kent of the New York Court of Chancery in the early 19th century. He tried to respond to the obvious absence of traditional statements: since the parties could not spontaneously adjust their questions, they had to propose broad interrogations and in turn produce “long and complicated reports” of the facts, difficult for the teachers to summarize in writing. As a result, Kent allowed New York masters to actively participate in oral examination of witnesses (in the sense of formulating questions in real time and narrowing their scope based on witness responses), and he also allowed parties and counsel to attend these interviews. Kent`s innovations spread into U.S. federal practice in 1842, when the U.S.
Supreme Court amended the Federal Equity Rules to allow masters of equitable proceedings in federal courts to hold oral hearings of witnesses. However, since the parties and defence counsel were now present to conduct the examination of the witness by the captain, it was inevitable that defence counsel would insist on resuming the examination himself. Their presence also meant that the proceedings were no longer secret. [6] No, the totality of efforts made by a litigant and its counsel to obtain information prior to trial by requiring the production of documents, statements from potential parties and witnesses, written hearings (sworn written questions and answers), written requests for admission of facts, crime scene investigations, and requests and motions to enforce investigative rights. The theory of discovery rights in a broad sense states that all parties approach the courts with as much knowledge as possible and that neither party should be able to hide secrets from the other (with the exception of constitutional protection against self-incrimination). Often, much of the battle between the two sides takes place in a costume during the period of discovery. As introduced in 1938, the modern American system of discovery directly granted private parties and their lawyers powers “functionally equivalent” to the power to issue self-executing administrative subpoenas. [36] This is why civil law countries reject and firmly reject the American findings: they consider a large discovery in the hands of private parties to be destructive of the rule of law because, in their view, the result amounts to “a private inquisition.” [37] Civil law countries consider that the underlying objectives of discovery are duly monopolized by the state to uphold the rule of law: the objective of discovery investigation is the prerogative of the executive, and to the extent that discovery may facilitate the creation of new rights, it is the prerogative of Parliament. [37] To begin preparing for trial, both sides are making discoveries.
