U.S. Discovery 101: What Is It And What Can You Get? -
Discovery is at the heart of the U.S. litigation system. In 1933, Edson Sunderland, one of the drafters of the discovery rules embodied in the U.S. Federal Rules of Civil Procedure (“FRCP”), wrote that the “discovery procedure serves much the same function in the field of law as the X-ray in the field of medicine and surgery”: to discover facts so that the outcome is not determined by a mere “game of chance.” For U.S. litigants, “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947) (Murphy, J.).
It is a truism that the U.S. legal system provides for more extensive production of evidence mechanisms than most other jurisdictions around the world. The FRCP provides litigants extensive powers to request and compel disclosure of evidence, including pretrial admissions of facts and answers to allegations, from each other and, to a lesser extent, from third parties who are strangers to the suit. As the US Supreme Court noted in Intel v AMD, “[m]ost civillaw systems lack procedures analogous to the pretrial discovery regime operative under the Federal Rules of Civil Procedure.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 262 (2004).
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