{"id":12203,"date":"2018-01-17T05:59:49","date_gmt":"2018-01-17T05:59:49","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=12203"},"modified":"2018-02-20T19:56:54","modified_gmt":"2018-02-20T19:56:54","slug":"discovery","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=12203","title":{"rendered":"Discovery – in advance of trial, request documents and facts that are within the knowledge or possession of the other side"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Every Type of Motion<\/a> >>>> >>>> Various Legal Terms pertaining to Motions<\/a>:<\/span>
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discovery<\/span>:<\/span><\/span>
\n<\/strong><\/span>n<\/em>. (16c)<\/span><\/p>\n

1. Compulsory disclosure, at a party\u2019s request, of information that relates to the litigation<\/strong>.\u00a0\u00a0See<\/span>\u00a0<\/strong>Fed. R. Civ. P. 26-3<\/strong>7<\/a>;\u00a0Fed. R. Crim. P. 16<\/strong><\/a>.\u00a0 \u00a0The primary discovery devices are interrogatories, depositions, requests for adm<\/strong>issions, and requests for production.\u00a0 Although, discovery typically comes from parties, courts also allow limited discovery from nonparties. <\/strong><\/span><\/span><\/span><\/p>\n

2. The facts or documents disclosed<\/strong>\u00a0<the new associate spent all her time reviewing discovery>. <\/strong><\/span><\/span><\/p>\n

3<\/strong><\/span><\/span>. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.<\/span>\u00a0\u00a0<\/strong><\/span>discover<\/strong><\/em><\/span>,vb<\/em>. \u2014<\/span> discoverable<\/strong><\/em><\/span>,\u00a0adj<\/em>.<\/span> [1]<\/span><\/span><\/p>\n

1. A<\/span> remedy<\/a> for the sole purpose of compelling the adverse party to answer its allegations and interrogatories, and thereby to disclose facts within his own knowledge, information, or belief, or to disclose and produce documents, books and other things within his possession, custody, or control, being usually employed to enable a party to prosecute or defend an action.<\/span> 23 Am J2d Depos \u00a7 141<\/span>.<\/span><\/strong> [2]<\/span><\/span><\/p>\n

1. A means for providing a party, in advance of trial, with access to facts that are within the knowledge of the other side, to enable the party to better try her case.\u00a0 A motion to compel discovery is the procedural means for compelling the adverse party to reveal such facts or to produce documents, books, and other things within his possession or control. <\/strong><\/span>[3]<\/span><\/p>\n

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\u00a0 \u00a0 \u00a0Excerpt from Geoffrey C. Hazard Jr. & Michele Taruffo\u2019s\u00a0<\/span>American Civil Procedure: An Introduction<\/a><\/em>\u00a0(1993):<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u201cDiscovery has broad scope. According to<\/span>\u00a0Federal Rule 26<\/a>, which is the model in modern procedural codes, inquiry may be made into \u2018any matter, not privileged, that is relevant to the subject matter of the action.\u2019\u00a0 Thus, discovery may be had of facts incidentally relevant to the issues in the pleadings even if the facts do not directly prove or disprove the facts in question.<\/span>\u201d<\/strong>\u00a0[2]<\/span><\/p>\n

Related Terms:<\/strong><\/span><\/p>\n

reciprocal discovery<\/span><\/a> – the corresponding rights and duties of both sides of litigation to engage in discovery.\u00a0 <\/span><\/span><\/strong>\u2014 The term “reciprocal discovery” is also sometimes used to describe<\/span> reverse Jencks material<\/em><\/a><\/strong>.<\/span>
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Types of Discovery
\nPertaining to Civil Cases:
\n<\/span><\/strong><\/span><\/p>\n<\/div>\n

initial disclosure<\/span><\/a> – in<\/span> civil<\/a> practice, the requirement that parties make available to each other, without first receiving a discovery request: contact information for all involved parties, a copy of all relevant documents and data compilations, a damages computation, and relevant insurance agreements.<\/span>\u00a0 Fed. R. Civ. P. 26(a)(1)(A)-(D)<\/a>.<\/span><\/strong><\/p>\n

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pretrial discovery<\/span><\/a> – discovery conducted before trial to reveal facts and develop evidence; prevents parties from surprising each other with evidence at trial.<\/span><\/strong><\/p>\n

jurisdictional discovery<\/span><\/a> – discovery that is limited to finding facts relevant to whether the court has jurisdiction<\/a>, sometimes allowed by a court prior to ruling on a motion to dismiss<\/a> for lack of jurisdiction<\/a>.<\/span><\/strong><\/p>\n

merits discovery<\/span><\/a> – discovery to uncover facts that support the<\/span> claim<\/a> or defense, or that might lead to other facts that will support the allegations of a legal proceeding.<\/span><\/span><\/strong><\/p>\n

Terms Pertaining only to Criminal Cases:<\/span><\/strong><\/p>\n

Jencks<\/em> material<\/span><\/a> – a prosecution witness\u2019s written or recorded pretrial statement that a criminal defendant, upon filing a motion after the witness has testified, is entitled to have in preparing to cross-examine the witness; the statement may may be used to impeach the witness.<\/span><\/span><\/strong><\/p>\n

Jencks<\/em> rule<\/a> <\/span>– the rule that a defendant in a federal criminal prosecution has the right to examine government papers to be better able to cross-examine or impeach government witnesses.<\/span><\/span><\/strong><\/p>\n

Jencks Act<\/span><\/a> – a defendant in a federal criminal prosecution has the right to examine government papers to be better able to cross-examine or impeach government witnesses, but only after the witness has testified. <\/span>18 USC\u00a0\u00a7 3500<\/a>.<\/span><\/strong><\/span><\/p>\n

reverse Jencks<\/em> material<\/span><\/a> – a defense witness\u2019s written or recorded pretrial statement that a prosecutor is entitled to have, via pretrial discovery, in preparing to cross-examine the witness; discoverable statements include a witness\u2019s signed or adopted written statement, and transcripts or recordings of the witness s oral statements, including grand-jury testimony. U.S. v. Nobles<\/em>, 422 U. S. 225, 231-34, 95 S. Ct. 2160, 2166-68 (1975<\/span>)<\/span><\/span><\/strong>;<\/span> Fed. R. Crim. P. 26. 2<\/a>.\u00a0<\/span><\/span><\/strong>\u2014 aka<\/span><\/span> reverse J<\/em><\/span>encks<\/em><\/span>; reverse discovery<\/em><\/span>;<\/span> reciprocal discovery<\/em><\/a>.<\/span><\/span> <\/strong><\/p>\n

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\u00a0<\/span>Additional Terms:<\/span><\/strong><\/span><\/p>\n<\/div>\n

accelerated discovery<\/span>: <\/span><\/strong><\/span>(1973) A party\u2019s production of relevant evidence to an opponent at a time earlier than would otherwise be required by rule or standing order of the court.\u00a0 *\u00a0 The accelerated discovery is usually\u00a0<\/strong>carried out in compliance with a specific court order or the parties\u2019 agreement\u00a0\u2014 <\/strong>aka<\/span> accelerated\u00a0<\/em>disclosure<\/em><\/span><\/strong>.<\/span><\/span><\/p>\n

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document discovery<\/span>: <\/span><\/strong><\/span>The use of devices to request an opponent\u2019s production of documents containing information relevant to litigation.<\/strong><\/span><\/p>\n

discovery abuse<\/span> – <\/span><\/strong><\/span>(1975) 1. The misuse of the pretrial discovery process, especially by making overbroad requests for information that is unnecessary or beyond the scope of permissible disclosure or by conducting discovery for an improper purpose.\u00a0\u00a0<\/strong>\u2014 aka<\/span> abusive discovery<\/em><\/strong><\/span>.<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Charles Alan Wright’s<\/span>\u00a0The Law of Federal Courts<\/a>\u00a0<\/span><\/em>(5th ed. 1994):<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201c<\/span>The term \u2018discovery abuse\u2019 has been used as if it were a single concept, but it includes several different things. Thus, it is useful to subdivide \u2018abuse\u2019 into \u2018misuse\u2019 and \u2018overuse.\u2019 What is referred to as \u2018misuse\u2019 would include not only direct violation of the rules, as by failing to respond to a discovery request within’ the stated time limit, but also more subtle attempts to hara s or obstruct an opponent, as by giving obviously inadequate answers or by requesting information that clearly is outside the scope of discovery. By \u2018overuse\u2019 is meant asking for more discovery than is necessary or appropriate to the particular case. \u2018Overuse,\u2019 in turn, can be subdivided into problems of \u2018depth\u2019 and of \u2018breadth,\u2019 with \u2018depth\u2019 referring to discovery that may be relevant but is simply excessive and \u2018breadth\u2019 referring to discovery requests that go into matters too far removed\u00a0<\/span><\/strong>from the case.<\/span>\u201d\u00a0<\/span><\/strong>[3]<\/span><\/span><\/p>\n

discovery abuse<\/span>:<\/span><\/span>
\n<\/strong>(second definition)<\/em><\/span><\/span><\/p>\n

1. The failure to respond adequately to proper discovery requests.<\/strong> \u2014 aka<\/span> abuse of discovery<\/em><\/strong><\/span>.<\/span><\/p>\n

discovery disclosure<\/span>:<\/span><\/span>
\n<\/strong>(second definition)<\/em><\/span><\/span><\/p>\n

2.\u00a0The mandatory divulging of information to a litigation opponent according to procedural rules.\u00a0<\/strong>\u2014 aka<\/span> pretrial disclosure<\/em><\/span><\/strong>; compulsory disclosure<\/em><\/strong><\/span>; automatic disclosure<\/em><\/strong><\/span>; discovery disclosure<\/em><\/strong><\/span>. \u2014\u00a0dis<\/em>closural<\/em><\/strong><\/span>, adj<\/em>.“<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Jay E.\u2018Grenig & Jeffrey S. Kinsler’s Handbook of Federal Civil Discovery and Disclosure<\/a><\/em>:<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cRule 26(a) [of the Federal Rules of Civil Procedure]<\/a> reflects a shift away from the traditional method of obtaining discovery through the service of written demands toward requiring automatic disclosure by the parties of information t<\/span>hat would invariably be requested.\u00a0 The goal of automatic disclosure is the creation of a more efficient and expeditious discovery process. . . .<\/span> Rule 26(a)(1)<\/a> provides for the initial disclosure of specified information relating to witnesses, documents, and insurance agreements.<\/span>\u00a0 Rule 26(a) (2)<\/a> provides for the disclosure of information regarding experts who may be used at trial.<\/span>\u00a0\u00a0Rule 26(a)(3)<\/a> provides for specified pretrial disclosures regarding witnesses, evidence, and objections.\u201d<\/span>\u00a0<\/span><\/strong>[4]<\/span><\/span><\/p>\n

\u00a0<\/span>discovery immunity<\/span>:<\/span><\/span>
\n<\/strong><\/span>(1975)
\n<\/span><\/div>\n
\u00a0<\/span><\/div>\n
1.<\/strong> An exemption provided by statute, caselaw, or court rules to exclude certain documents and information from being disclosed during discovery.<\/strong><\/span><\/div>\n
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administrative discovery<\/span>:<\/span><\/span> <\/strong>Discovery conducted under the rules for an administrative hearing<\/strong>.<\/span><\/span><\/div>\n
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administrative hearing<\/span>: <\/span><\/strong><\/span>(1911) An administrative-agency proceeding in which evidence is offered for argument or trial. <\/strong>[1]<\/span><\/span><\/div>\n

References:<\/span><\/span><\/strong><\/p>\n

Disclaimer:<\/span><\/span><\/strong> All material throughout this website is compiled in accordance with Fair Use<\/a>.<\/span><\/strong><\/p>\n

[1]: Black\u2019s Law Dictionary\u00a0Deluxe Tenth Edition\u00a0by Henry Campbell Black & Editor in Chief Bryan A. Garner<\/a>. ISBN: 978-0-314-62130-6<\/span><\/strong><\/p>\n

[2]: Ballantine\u2019s Law Dictionary\u00a0<\/a><\/span><\/strong>with Pronunciations<\/b><\/span><\/em>
\n<\/span><\/em>Third Edition<\/span><\/strong><\/a>\u00a0by James A. Ballantine\u00a0<\/span><\/strong>(James Arthur 1871-1949).\u00a0\u00a0<\/span><\/em>Edited by William S. Anderson.\u00a0\u00a0\u00a9 1969 by THE LAWYER\u2019S CO-OPERATIVE PUBLISHING COMPANY.\u00a0 Library of Congress Catalog Card No. 68-30931<\/span><\/strong><\/p>\n

[3]: Ballantine’s Law Dictionary <\/a><\/span><\/strong>Legal Assistant Edition<\/a> <\/b><\/span><\/em>by Jack Ballantine\u00a0<\/span><\/strong>(James Arthur 1871-1949).\u00a0\u00a0<\/span><\/em>Doctored<\/span><\/a><\/strong>\u00a0<\/span><\/em>by\u00a0Jack G. Handler,\u00a0J.D.<\/a>\u00a0\u00a9 1994 Delmar by Thomson Learning.\u00a0 ISBN 0-8273-4874-6.<\/span><\/strong><\/p>\n

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