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 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

OF ANTITRUST LAW, ANTITRUST DISCOVERY HANDBOOK (3d ed. 2013).