Chapter I. The Role of Discovery in the U.S. Legal System

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CHAPTER I

THE ROLE OF DISCOVERY IN

THE U.S. LEGAL SYSTEM

“Discovery” in the context of U.S. trial practice refers to the process by

which parties to a legal proceeding gain access to facts which may directly

or indirectly support their claims or defenses. In the United States, there are

five basic forms of discovery: depositions, interrogatories, requests for

production of documents (or permission to inspect), physical and mental

examinations and requests for admission. Discovery is not the process by

which the courts discover the facts; discovery is the process by which the

parties discover the facts which are then presented to the court by the

parties. The adversarial process ensures that the relevant facts are brought

to the attention of the court. The identity of the person responsible for

collecting the facts is a fundamental difference between adversarial and

inquisitive systems of justice common in most foreign jurisdictions. This

difference explains much of the hostility by foreign jurisdictions to U.S.

discovery requests.

The increase in the amount of litigation in the United States involving

foreign parties has increased the frequency of the need to collect evidence

located outside the United States. Antitrust law is one particular field which

has experienced such increase. In cases involving parties or witnesses

outside the United States, the collection of evidence located abroad

becomes imperative in the adjudication of the case. This publication is

designed to assist those involved in U.S. litigation in understanding the

legal and practical parameters of collecting evidence from a foreign

jurisdiction.1

One recurring theme in this publication is the general hostility of

foreign courts to U.S.-style discovery. There are two primary sources of

this hostility. The first is that most civil law countries use an inquisitorial

system of justice characterized by an active judge. In such systems, the

judge questions the witnesses and decides which documents to request. The

gathering of the evidence is perceived as a sovereign function best left to a

passive judge. In contrast, the U.S. judicial system is characterized by a

neutral judge and an active bar. It rests on the assumption that justice is

achieved through the presentation of the facts before a passive judge or jury

1. For a summary of discovery in domestic antitrust cases, see ABA SECTION OF

ANTITRUST LAW, ANTITRUST DISCOVERY HANDBOOK (2d ed. 2003).