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 court discovers 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 is intended to ensure 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 inquisitorial 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
located in 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 an active 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
1. For a summary of discovery in domestic antitrust cases, see ABA SECTION

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