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109-496: The Hague Evidence Convention was not the first convention to address the transmission of evidence from one state to another. The 1905 Civil Procedure Convention—also signed in The Hague—contained provisions dealing with the transmission of evidence. However, that earlier convention did not command wide support and was only ratified by 22 countries. The convention establishes a procedure whereby each contracting state designates

218-420: A "central authority" to receive and review incoming "letters of request" for taking evidence in that country. The central authority reviews the letter of request to determine that it complies with the requirements of the convention. If the letter of request does comply, the central authority then "transmits" the letter of request "to the authority competent to execute" it (article 2), which essentially means to

327-463: A case by case basis, holding as follows: "None of this forecloses the possibility that sovereigns might imbue an ad hoc arbitration panel with official authority. Governmental and intergovernmental bodies may take many forms, and we do not attempt to prescribe how they should be structured. The point is only that a body does not possess governmental authority just because nations agree in a treaty to submit to arbitration before it. The relevant question

436-400: A court. Under Article 9, the judicial authority that executes a letter of request applies its own law as to the methods and procedures for executing the letter of request. Under article 13, (a) the documents establishing the execution of the letter of request are to be sent by the requested authority (the recipient of the letter of request) to the requesting authority by the same channel that

545-770: A decision about any possible plea deal. In California state courts, discovery is governed by the Civil Discovery Act of 1986 (Title 4 (Sections 2016-2036) of the Code of Civil Procedure), as subsequently amended. A significant number of appellate court decisions have interpreted and construed the provisions of the Act. California written discovery generally consists of four methods: demands for inspection (the formal statutory name for requests for production of documents), form interrogatories, special interrogatories, and requests for admissions. The duty to respond to California discovery requests

654-435: A defendant in a criminal case requests discovery from the prosecution, the prosecutor may request reciprocal discovery. The prosecutor's right to discovery is deemed reciprocal as it arises from the defendant's request for discovery. The prosecutor's ability to obtain discovery is limited by the defendant's Fifth Amendment rights, specifically the defendant's constitutional protection against self-incrimination. Discovery in

763-403: A defendant's pre-trial request for a Lone Pine order , which requires a plaintiff to show prima facie evidence of injury and specific causation via an expert's report , rather than dovetailing their claims with other plaintiffs. As implemented in 1938, the modern American discovery scheme granted powers directly to private parties and their counsel which are "functionally equivalent" to

872-476: A discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order. Discovery evolved out of a unique feature of early equitable pleading procedure before the English Court of Chancery : among various requirements,

981-537: A district court's broad discretion in deciding whether and to what extent to grant Section 1782 requests. The section 1782 litigation that has received the most attention has involved Chevron Corporation , which brought several section 1782 motions in various courts throughout the United States in connection with a massive tort claim against Chevron in Ecuador. The Federal appellate courts had been divided as to whether

1090-449: A document or other thing in violation of any legally applicable privilege . In essence, an applicant under Section 1782 needs to show three things: The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence. The Court then has a discretion whether to grant the discovery requested. Following the Intel decision (discussed below)

1199-478: A governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under §1782. Such bodies are those that exercise governmental authority conferred by one nation or multiple nations. Neither the private commercial arbitral panel in the first case nor the ad hoc arbitration panel in the second case qualifies." The Court (at page 15) left open the possibility that some investor-state arbitrations might qualify as foreign tribunals, on

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1308-567: A hearing commissioner is available on motion of a party to the Superior Court judge designated by the Chief Judge to conduct such reviews...After that review has been completed, appeal may be taken to the District of Columbia Court of Appeals." This rule basically implies that in a civil action, if a hearing commissioner is authorized by all parties to conduct the proceedings instead of a judge, upon

1417-431: A lawsuit, by enabling parties to drain each other's financial resources in a war of attrition . For example, one can make information requests that are potentially expensive and time-consuming for the other side to fulfill, respond to a discovery request with thousands of documents of questionable relevance to the case, file requests for protective orders to prevent the deposition of key witnesses, and in other ways increase

1526-410: A litigant ( party ) to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding, a process known as discovery . The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals". The text of Section 1782(a) reads as follows: The district court of the district in which

1635-491: A newsletter of the ABA's Committee on Pretrial Practice & Discovery, Jonathan I. Handler and Erica Tennyson have observed that Section 1782 "may lead to nonreciprocal access to discovery and may even allow private litigants to exploit the statute to obtain information about a competitor and force an adversary to settle the underlying dispute." At the same time, Handler and Tennyson note that these "potential inequities" can be offset by

1744-419: A non-US arbitration constitutes a "foreign or international tribunal" for the purposes of 1782 discovery. The Second, Fifth, and Seventh Circuits had held that a private arbitration does not fall within the definition of tribunal under the statute. The Fourth and Sixth Circuits had taken the contrary view as to private arbitrations. The Second Circuit had held that a specific investor-state arbitration fell within

1853-638: A non-US arbitration. Entitling their commentary "Sweet Georgia", Garfinkel and Nelson called the Georgian decision "ground breaking". Writing in the New York Law Journal in May 2007, Eric Schwartz and Alan Howard (both New York) expressed a critical view of the Georgia case and of the apparent trend that it represented. Schwartz and Howard predicted that the pro-discovery ruling from Georgia could result in "the doors of

1962-601: A non-US commercial arbitration or an ad hoc UNCITRAL investor-state arbitration. This is discussed further below. Writing in the International Litigation Quarterly (of the American Bar Association ) in March 2008, Eric Sherby (Israel) rejected the contention that section 1782 imposes too much of a burden on Corporate America. Focusing on five cases from the mid-1990s through 2006, Sherby argued that

2071-556: A number of important Supreme Court decisions and statutes, the most important of which are, The formal discovery process for federal criminal prosecutions is outlined in the Federal Rules of Criminal Procedure, Rule 16. The District of Columbia follows the federal rules, with a few exceptions. Some deadlines are different, and litigants may only resort to the D.C. Superior Court. Forty interrogatories, including parts and sub-parts, may be propounded by one party on any other party. There

2180-447: A person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person. ... The order may prescribe

2289-493: A plaintiff's bill in equity was required to plead "positions". These were statements of evidence that the plaintiff assumed to exist in support of his pleading and which he believed lay within the knowledge of the defendant. They strongly resembled modern requests for admissions, in that the defendant was required to plead only whether they were true or false. The practice of pleading positiones in canon law (which influenced Chancery procedure) had originated with "the practice of

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2398-444: A quorum) who could not be interested persons (i.e., parties or their lawyers) and were usually country gentlemen . Once agreed upon, the court would grant them authority to examine witnesses by way of dedimus potestatem . The person(s) examining the witness would appoint a clerk, whom under their supervision would write down the witness's oral answers under oath in summary form on paper, as if they had been spontaneously delivered as

2507-526: A request for a review or appeal, the motion must first be reviewed by a Superior Court judge to the same standard as a motion for appeal on a Superior Court Judge to the Court of Appeals, but the right to appeal to the higher courts still remains. Many states have adopted discovery procedures based on the federal system; some closely adhere to the federal model, others not so closely. Some states take an entirely different approach to discovery. Many states have adopted

2616-472: A result, even in civil matters (including Hague Evidence Convention requests), the Israeli court system usually assigns letters of request to judges in the criminal division. Due to that allocation, most Israeli decisions issued in connection with international evidence-gathering are stamped "closed doors," which essentially means that it is unlawful to publish the decision. The American Bar Association conducted

2725-458: A section 1782 order may compel a person located in the United States to produce documents that are located outside the US. Sherby has argued that most cases that have addressed the subject do not expressly hold that there is any geographical limitation to section 1782 and that, in determining whether to apply section 1782 to documents outside the US, the main issue that courts have considered is whether there

2834-476: A similar accusation, that discovery is used by plaintiffs' lawyers to impose costs on defendants in order to force settlements in unmeritorious cases to avoid the cost of discovery. However, others argue that discovery abuse is an exaggerated concept, that discovery works well in most cases, and exaggeration of American litigiousness and its cost result in confusion within the justice system. To weed out spurious plaintiffs in mass tort cases, some courts may grant

2943-497: A single continuous third-person narrative , rather than as responses given in the first person to discrete questions. In other words, the actual sequence of questions and answers was not transcribed verbatim like a modern deposition. For example, the surviving narratives of multiple witnesses to a 16 May 1643 enclosure riot in Whittlesey reveal striking similarities which imply the witnesses probably gave "yes" and "no" answers to

3052-571: A survey to receive feedback from American lawyers concerning their experience with the letter of request procedures under the Hague Evidence Convention. The ABA published the results of the survey in October 2003, and its Conclusions section begins as follows: The Hague Evidence Convention has been remarkably successful in bridging differences between the common law and civil law approaches to obtaining evidence and has significantly streamlined

3161-475: A unique feature of American and Canadian discovery) occurred under the supervision of Chancellor James Kent of the New York Court of Chancery during the early 19th century. He was trying to respond to the obvious defect of traditional depositions: since parties could not adjust their questions on the fly, they had to propound broadly drawn interrogatories, and in turn elicited "long and complicated accounts" of

3270-764: Is privileged and the work product of the opposing party. Other types of information may be protected, depending on the type of case and the status of the party. For instance, juvenile criminal records are generally not discoverable, peer review findings by hospitals in medical negligence cases are generally not discoverable and, depending on the case, other types of evidence may be non-discoverable for reasons of privacy, difficulty or expense in complying and for other reasons. (Criminal discovery rules may differ from those discussed here.) Electronic discovery or "e-discovery" refers to discovery of information stored in electronic format (often referred to as Electronically Stored Information , or ESI). In practice, most civil cases in

3379-401: Is available to a non-US litigant almost as freely as discovery is available in connection with a lawsuit that is pending entirely before a court in the United States. Section 1782 has received great attention in recent years, following Intel . The subject matter of Section 1782 – obtaining evidence in the US for use in legal proceedings outside the United States – overlaps to some extent with

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3488-551: Is even more broad under Israeli law. As noted above, Israel has not issued an article 23 declaration. Israeli law provides, pursuant to the Legal Assistance Among States Law 1998, for the possibility of the appointment of a private lawyer to oversee the process of taking evidence under the convention. That statute also governs the procedure for evidence-gathering in Israel in aid of foreign criminal investigations. As

3597-676: Is evidence indicating either (1) that the applicant is trying to circumvent a restriction of the foreign tribunal or (2) that an order of production would interfere with the foreign proceedings. The U.S. Court of Appeals for the Ninth Circuit declined to rule on the point in Four Pillars Enterprises Co v Avery Dennison Corp 308 F3d 1075 (2002). The Seventh Circuit refused extraterritorial discovery in Kestrel v. Joy Global , 362 F.3d 401 (2004), but this appears mainly to have been because

3706-405: Is manually deployed. In relation to the first approach there are several issues: New technology is able to address problems created by the first approach by running an application entirely in memory on each custodian machine and only pushing responsive data across the network. This process has been patented and embodied in a tool that has been the subject of a conference paper. In relation to

3815-412: Is no requirement for a "privilege log": federal Rule 26(b)(5) was not adopted by the D.C. Superior Court. Where above is stated "litigants may only resort to the D.C. Superior Court" upon correction is found according to the District of Columbia Superior Court Rules of Civil Procedure Section 73(b)Judicial Review and Appeal which states: "Judicial review of a final order or judgment entered upon direction of

3924-480: Is not a continuing duty: the responding party only needs to respond with the facts as known on the date of the response, and is under no obligation to update its responses as new facts become known. This causes many parties to reserve one or two interrogatories until the closing days of discovery, when they ask if any of the previous responses to discovery have changed, and then ask what the changes are. Historically, California depositions were not limited in length until

4033-697: Is now known as the High Court of Justice . Although discovery by then had been available at common law for almost two decades, the new court generally looked to the older and broader form of discovery in chancery as the basis of its discovery rules. In 1938, the promulgation of the Federal Rules of Civil Procedure (FRCP) (pursuant to the Rules Enabling Act ) created for the first time a comprehensive discovery system in U.S. federal courts. The FRCP authorized broad discovery into "any matter, not privileged, which

4142-473: Is obligated to provide to the defendant any information that is exculpatory or potentially exculpatory, without any request by the defense. Further discovery is available if initiated by the defendant. For example, a discovery demand might be for production of the names of witnesses, witness statements, information about evidence, a request for opportunity to inspect tangible evidence, and for any reports prepared by expert witnesses who will testify at trial. If

4251-546: Is relevant to the subject matter in the pending action, whether relating to the claim or defense of" either party. Due to the influence of progressive law professor Edson R. Sunderland, an enthusiastic proponent of broad discovery, the FRCP expressly authorized the complete family of discovery methods familiar to American litigators today. What made the FRCP so revolutionary was that although many state governments had regularly allowed one or more methods of discovery, no one state nor

4360-580: Is the process by which the Crown, typically through the Crown Prosecution Service , provides the defence with relevant information discovered during the course of a criminal investigation. The disclosure process helps protect the right to a fair trial . Every accused person has a right to a fair trial. This right is a fundamental part of the legal system in England and Wales and is guaranteed by Article 6 of

4469-578: Is unduly intrusive or burdensome. For many years, district courts and appellate courts disagreed as to The case law concerning Section 1782 was largely clarified in 2004, when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc. Intel held that The court also largely did away with any requirement of "discoverability" before the non-US tribunal. In essence, Intel held that section 1782 discovery

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4578-682: Is whether the nations intended that the ad hoc panel exercise governmental authority. And here, all indications are that they did not." Following ZF , in In re Alpene 2022 WL 15497008 (Oct. 27, 2022), the Eastern District of New York held that section 1782 discovery was not available in relation to an investor-State arbitration under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID). The Court found that there

4687-526: The European Convention on Human Rights (ECHR). The test for what information should be provided during disclosure is set by section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA). This requires the Crown to provide all information which might be reasonably capable of undermining the prosecution case or assisting the defence case. This standard is an ongoing obligation throughout

4796-586: The Federal Rules of Civil Procedure , the plaintiff must initiate a conference between the parties after the complaint was served to the defendants, to plan for the discovery process. The parties should attempt to agree on the proposed discovery schedule, and submit a proposed Discovery Plan to the court within 14 days after the conference. After that, the main discovery process begins which includes: initial disclosures , depositions , interrogatories , request for admissions (RFA) and request for production of documents (RFP). In most federal district courts ,

4905-638: The International Practicum of the New York State Bar Association (1999), Hugh L. Burns and Sharad A. Samy (both New York) have referred to section 1782 as the international litigant's discovery "weapon of choice". In a commentary in Mealey's International Arbitration Report , Barry Garfinkel and Timothy Nelson (both New York), discussed a decision of a federal district court in Georgia that permitted Section 1782 discovery in connection with

5014-461: The Lord Chancellor in lieu of live testimony in open court, was a kind of factfinding process in its own right. As implied by the secret nature of the proceedings and the absence of parties and counsel, equity's factfinding process was fundamentally inquisitorial (i.e., driven by the court), and not adversarial (i.e., driven by the parties). It is generally believed that this came about because

5123-589: The Thirteen Colonies , including the tradition of having courts of equity appoint masters to take depositions. It is this quasi-inquisitorial procedure to which the United States Congress was referring in an 1802 law providing that "in all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions." The next major development (which would remain

5232-544: The U.S. Supreme Court amended the Federal Equity Rules to allow masters in equity suits in federal courts to conduct oral examinations of witnesses. However, with the parties and counsel now present to help guide the course of the master's oral examination of the witness, it was inevitable that counsel would insist on taking over the examination itself, and their presence meant the proceedings were no longer secret. A New York deposition from January 1839 reveals that

5341-595: The Uniform Interstate Depositions and Discovery Act to provide uniform process when discovery is to be done out of state. In Alaska criminal courts, discovery is governed by Rule of Criminal Procedure 16 (Cr.R.16). The scope of discovery is broad and includes much more than is required by Brady v. Maryland , 373 U.S. 83 (1963). The discovery process is intended to provide adequate information for informed pleas, to expedite trial, minimize surprise, afford an opportunity for effective cross-examination, and meet

5450-497: The Chancellor on that cold record. One key difference, however, was that in ecclesiastical courts, the judge himself took the depositions of the witnesses (by reading to them the interrogatories submitted by the parties), and thus personally developed the factual record which the parties would then argue over at trial. To modern eyes, the most bizarre aspect of Chancery's adoption of such a labor-intensive quasi-inquisitorial procedure

5559-543: The Convention, the United Mexican States declares that according to Mexican law, it shall only be able to comply with letters of request issued for the purpose of obtaining the production and transcription of documents when the following requirements are met: (a) that the judicial proceeding has been commenced; (b) that the documents are reasonably identifiable as to date, subject and other relevant information and that

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5668-546: The District Court for the District of Columbia in In re Application of The Islamic Republic of Pakistan for an Order Permitting Discovery Pursuant to 28 U.S.C. § 1782 , Misc. Action No. 18-103 (D.D.C. April 10, 2019). In Minatec Finance S.A.R.L. v. SI Group, Inc ., No. 1:08-CV-269 (LEK/RFT), 2008 WL3884374 (August 18, 2008) the District Court for the Northern District of New York held that a German tax auditing procedure

5777-552: The Evidence Act 1851 and the Common Law Procedure Act 1854. The right to discovery in the common law courts was "exercised somewhat more narrowly" than in chancery, but the point was that a litigant at common law no longer needed to file a bill of discovery in chancery just to obtain any discovery. The Supreme Court of Judicature Act 1873 merged together various trial courts, including the Court of Chancery, to form what

5886-461: The Hague Evidence Convention. 60 of the HCPIL member states are party to the Hague Evidence Convention. In addition, six states that are not members of the HCPIL (Barbados, Colombia, Kuwait, Liechtenstein, Nicaragua and Seychelles) have joined the Hague Evidence Convention. Article 39 of the Hague Evidence Convention expressly permits states which were not members of the HCPIL at the time of the conclusion of

5995-556: The Legislature enacted reforms in 2012. Another key difference is that most objections must be made in detail on the record at deposition or they are permanently waived. A party may only propound thirty-five written special interrogatories on any other single party unless the propounding party submits a "declaration of necessity". No "subparts, or a compound, conjunctive, or disjunctive question" may be included in an interrogatory. However, "form interrogatories" which have been approved by

6104-526: The New York code of civil procedure was that it only allowed parties to seek discovery on issues on which they would have the burden of proof at trial. This caused lawyers for defendants to plead fictional defenses in answers, because they still could not directly pursue discovery into the plaintiff's claims. In 1861, Rule 67 of the Federal Equity Rules was amended to make deposition by oral examination

6213-600: The Taking of Evidence in Civil or Commercial Matters. Discovery (law) Discovery , in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit in which each party, through the law of civil procedure , can obtain evidence from other parties by means of methods of discovery such as interrogatories , requests for production of documents , requests for admissions and depositions . Discovery can be obtained from nonparties using subpoenas . When

6322-479: The U.S. federal courts [swinging] open to a flood of future applications for the discovery of evidence against U.S. businesses for use in international arbitration proceedings" (emphasis added). Schwartz and Howard further asserted that such possibility should be "cause for alarm" for the U.S. business community. Subsequently, the US Supreme Court ruled that Section 1782 discovery is not available in respect of

6431-604: The US Supreme Court. In ZF Automotive US, Inc. v Luxshare, Ltd. , 596 US (2022) (decided June 13, 2022, together with AlixPartners LLP v The Fund for Protection of Investor Rights in Foreign States ), the Court unanimously held that Section 1782 did not apply to a commercial international arbitration or an ad hoc UNCITRAL investor-state arbitration. The Court reversed the decisions of the Sixth and Second Circuits on these issues. The Court concluded thus (at page 16): "In sum, only

6540-496: The United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" Federal Rules of Civil Procedure . According to

6649-447: The United States are settled after discovery. After discovery, both sides often are in agreement about the relative strength and weaknesses of each side's case and this often results in either a settlement or summary judgment , which eliminates the expense and risks of a trial. Discovery is also available in criminal cases. Under the rule set forth in Brady v. Maryland , the prosecutor

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6758-467: The accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph Section 1782 Discovery Section 1782 of Title 28 of the United States Code is a federal statute that allows

6867-591: The accused, (iii) written or recorded statements of a co-defendant, (iv) any books, papers, documents, photographs or tangible objects with the prosecutor intends to use at trial, (v) any prior criminal convictions of the defendant or any witness. In practice, this means that criminal defendants in Alaska are able to review any police report, lab report, audio/video recordings, witness statements, and more, before they proceed to trial. Most defendants will also have this material far enough in advance to have reviewed it before making

6976-430: The authority of courts of equity came to be called a "deposition". It continued to be used as an evidence preservation device in aid of actions at law, but it also became the standard method for developing the factual record to be used in courts of equity as derived from the knowledge of third-party witnesses (not merely those who were old or dying). The process of summarizing testimony in narrative form, to be relied upon by

7085-503: The availability of Section 1782 discovery makes it more likely that an American court will grant a forum non conveniens (inconvenient forum) dismissal in many lawsuits brought against American defendants. As a result, Sherby further argued, Section 1782 is a blessing in disguise for those American companies that are engaged in international commerce yet do not want to be sued in American courts in connection with those activities. Writing in

7194-421: The bill, based on information within his own personal knowledge as well as documents in his possession. But back then, interrogatories could only elicit admissible evidence (not the broader modern standard of "reasonably calculated to lead to the discovery of admissible evidence") and could only request evidence in support of the plaintiff's case, not either side's case (that is, they could not ask for evidence which

7303-460: The common law courts). They began to file bills in equity to obtain discovery in aid of actions at law. This led to another innovation in the mid-15th century: the bill to perpetuate testimony of a potential witness. This was for witnesses whose advanced age or poor health implied they would not survive to testify at the trial of an action at law. In this type of proceeding, the parties merely pleaded written interrogatories which were read out loud to

7412-506: The convention applies to pre-trial discovery in 15 countries. 26 states have objected fully excluding pretrial discovery, while 17 others have restricted its applicability. An example of a partial objection to pre-trial discovery is from Mexico, requiring the start of the judicial proceedings, identifiability of the documents and a clear relationship between the requested documents and the pending proceedings: C) FORMULATION OF PRE-TRIAL DISCOVERY OF DOCUMENTS 4. With reference to Article 23 of

7521-516: The courts of the Italian communes in the early thirteenth century". Although canonists also looked to Roman law , positiones were unknown to the Romans. At some point between the reign of Elizabeth I (1558–1603) and the late seventeenth century, positions were gradually replaced by interrogatories : written questions which the defendant was required to truthfully respond to under oath in his answer to

7630-560: The defendant intended to use in support of his defenses and was otherwise entirely irrelevant to the plaintiff's case). Even worse, this was purely a one-way procedure, because interrogatories could only be pleaded as part of a bill (a pleading initiating a suit in equity). A defendant who needed to obtain evidence in support of his defenses had to file a cross-bill against the plaintiff to plead his own interrogatories. Discovery did not exist at common law, but its availability in equity attracted litigants in actions at law (legal proceedings in

7739-560: The defense of product liability claims brought against it in the Republic of Ecuador. Many observers believe that cost considerations have been one of the reasons that Section 1782 has not been used more extensively. Not all American lawyers or businesspeople believe that section 1782 discovery is a good thing. The United States Chamber of Commerce has expressed concerns as to the burden upon American businesses in having to comply with orders to produce evidence under Section 1782. That concern

7848-432: The definition (but had declined to rule that all such arbitrations would do so). Some courts had undertaken a "functional analysis" and considered several factors to determine whether an adjudicatory body is a "tribunal" for the purposes of the statute. The United States Department of Justice took the position that an arbitral tribunal is not a foreign tribunal under the statute. This issue has now been determined by

7957-420: The deposition's traditional role as an equitable factfinding device by first allowing and then requiring oral testimony in open court in trials of federal suits in equity, thereby reducing the deposition to its modern role in American civil procedure as a discovery and evidence preservation device. In England, discovery finally became available in the common law courts by the mid-1850s, after Parliament enacted

8066-468: The difficulty and cost of discovery. In 1983, the Advisory Committee on Civil Rules attached a Committee Note to Rule 26 of the FRCP that cautioned federal courts to "prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent", then had to repeat and stress that exact same text in the 2015 Committee Note. It has been argued that although

8175-442: The discovery of admissible evidence. This is a much broader standard than relevance, because it contemplates the exploration of evidence which might be relevant, rather than evidence which is truly relevant. (Issues of the scope of relevance are taken care of before trial with motions in limine and during trial with objections.) Certain types of information are generally protected from discovery; these include information which

8284-734: The documents sought were outside the target company's files. The District Court for the District of Columbia ruled against extra territorial discovery in Norex Petroleum Ltd v Chubb Ins Co of Canada 384 F Supp 2d 45 (2005). Subsequently, however, the Eleventh Circuit allowed extraterritorial discovery in Sergeeva v Tripleton Int’l Limited 834 F3d 1194 (2016). The Second Circuit then held in In re del Valle Ruiz 939 F3d 520 (2019) that Section 1782 does not contain any categorical bar to extraterritorial discovery. Other Circuits have not addressed

8393-432: The early 1870s), and by expressly authorizing pretrial oral examinations of both opposing parties and third-party witnesses, the basis of the modern deposition. (Up to that point, discovery from able-bodied opposing parties was still limited to interrogatories.) In fact, the New York code of civil procedure (brought about by David Dudley Field II ) went so far as to abolish written interrogatories. A major flaw, though, of

8502-456: The early Chancellors and the masters who assisted them were clerics with training in Roman and canon law, and therefore had some knowledge of the inquisitorial system as it functioned in ecclesiastical courts . The secrecy was thought to be absolutely essential to prevent perjury and witness tampering ; the witnesses would thereby be forced to testify from memory alone, and the parties could not use

8611-399: The examiner had already lost control of the examination. The examiner was reduced to summarizing a flurry of objections and arguments exchanged between the lawyers after one of them allegedly tried to take the witness aside to get an informal preview of the witness's answers before getting them on the record. All this would have been impossible under the old deposition procedure where counsel

8720-415: The factors relevant to the exercise of this discretion include the following: (1) whether the person from whom discovery is sought is a participant in the foreign proceeding; (2) the nature of the foreign tribunal and the character of the proceedings; (3) whether the application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies; and (4) whether the discovery sought

8829-408: The facts disclosed in testimony to guide their discovery or litigation strategy. Consistent with these inquisitorial views, there were also prohibitions on repeat testimony and on additional testimony after publication. Rather, the witnesses would testify independently of each other before publication, then at the moment of publication, all would be revealed, and the parties would make their arguments to

8938-434: The facts that were difficult for masters to summarize in writing. Therefore, Kent allowed New York masters to actively engage in oral examination of witnesses (in the sense of formulating questions in real time and narrowing their scope based on the witnesses' answers), and he also allowed parties and counsel to be present when such examinations were conducted. Kent's innovations spread into American federal practice in 1842 when

9047-503: The federal courts by expressly incorporating a proportionality requirement into the scope of discovery in the version of the FRCP that went into effect on December 1, 2015. Electronic discovery, also known as ediscovery, involves the discovery of electronic data and records. It is important that data obtained through ediscovery be reliable, and therefore admissible. Currently the two main approaches for identifying responsive material on custodian machines are: (1) where physical access to

9156-422: The federal government had ever attempted to allow litigators to use all of them, as Sunderland frankly admitted to the Advisory Committee that drafted the FRCP. As a result, the United States has the broadest discovery system in the world. After American discovery became the subject of harsh criticism for many decades (as separately summarized below), the United States retreated somewhat from broad discovery in

9265-472: The formal requests for interrogatories , request for admissions and request for production are exchanged between the parties and not filed with the court. Parties, however, can file motion to compel discovery if responses are not received within the FRCP time limit. Parties can file a motion for a protective order if the discovery requests become unduly burdensome or for purpose of harassment. In federal criminal prosecutions, discovery rights originate from

9374-411: The goal of discovery is to level the playing field between the parties, the discovery rules instead create a multi-level playing field that favors the party that is in control of the information needed by the other party. Instead of encouraging discovery, the rules are described as encouraging lawyers to find new ways to manipulate and distort or conceal information. Some tort reform supporters make

9483-440: The issue. In Fleischmann v. McDonald’s Corp. , 466 F. Supp. 2d 1020 (2006), the District Court for the Northern District of Illinois took the view that Section 1782 permits orders requiring non-parties to produce documents and to give oral testimony by deposition, but not orders to answer written interrogatories . At least one 2007 case, however, did require a non-party to answer interrogatories. Interrogatories were ordered by

9592-498: The lifespan of a criminal investigation and trial. While the majority of disclosure will likely take place at the outset of a trial - usually at or before the Pre-trial Preparation Hearing (PTPH), multiple disclosures may occur throughout a case as required. The CPIA 1996 Disclosure Test (1)The prosecutor must— (a) disclose to the accused any prosecution material which has not previously been disclosed to

9701-439: The organisations network is possible - agents are installed on each custodian machine which push large amounts of data for indexing across the network to one or more servers that have to be attached to the network or (2) for instances where it is impossible or impractical to attend the physical location of the custodian system - storage devices are attached to custodian machines (or company servers) and then each collection instance

9810-410: The power to issue self-executing administrative subpoenas. This is why civil law countries strongly dislike and oppose American discovery: they regard broad discovery in the hands of private parties as destructive of the rule of law because from their perspective, the result amounts to "a private inquisition." Civil law countries see the underlying objectives of discovery as properly monopolized by

9919-501: The practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure . A person may not be compelled to give his testimony or statement or to produce

10028-578: The procedures for compulsion of evidence from abroad. Insofar as requests to United States courts are concerned, parties may also use the simpler discovery provision codified at 28 U.S.C. § 1782 (see Section 1782 Discovery ). Between states of the European Union, the convention has largely been supplanted by Council Regulation (EC) No. 1206/2001 on Cooperation Between the Courts of the Member States in

10137-408: The record at the end before it was submitted to the court as evidence. In contrast, at trial in a common law court, the witness might be subject to "severe and rapid cross-examination " without sufficient time for reflection or deliberation, thereby causing them to "misrepresent facts, from infirmity of recollection or mistake". This procedure for ex parte out-of-court pretrial examinations under

10246-468: The regular method of taking evidence in equity in federal courts; taking witness testimony by written interrogatories was now the exception. Although depositions were still taken in front of court-appointed examiners, their role had been reduced to the preparation of summary narratives to be relied upon as evidence by the court. In 1892, Rule 67 was again amended to require the preparation of an exact transcript. Subsequent amendments in 1893 and 1912 eliminated

10355-429: The request specifies those facts and circumstances that lead the requesting party to reasonable believe that the requested documents are known to the person from whom they are requested or that they are in his possession or under his control or custody; (c) that the direct relationship between the evidence or information sought and the pending proceeding be identified. As of 2023, there are 66 states which are parties of

10464-433: The requirements of due process. To the extent possible, discovery prior to trial should be as full and free as possible, consistent with protection of persons, effective law enforcement, and the adversarial system. A prosecuting attorney is required to disclose to the accused the following material, and to make it available for inspection and copying: (i) names and addresses of witnesses, (ii) written or recorded statements of

10573-467: The same set of interrogatories. In London, the witness usually signed or marked the narrative at its end (and occasionally would sign at the bottom of each page), while outside of London, the clerk engrossed the narrative on parchment (in plain English, copied the text from paper to parchment in clearly legible handwriting). Either way, the resulting document (paper in or near London, parchment outside London)

10682-420: The second approach, despite self-collection being a hot topic in eDiscovery, concerns are being addressed by limiting the involvement of the custodian to simply plugging in a device and running an application to create an encrypted container of responsive documents. Under the law of the United States , civil discovery is wide-ranging and may seek disclosure of information that is reasonably calculated to lead to

10791-415: The state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the executive branch , and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the legislative branch . The discovery process in England and Wales is known as 'disclosure'. This process occurs in both civil and criminal cases. Criminal disclosure

10900-466: The state Judicial Council do not count toward this limit. In addition, no "preface or instruction" may be included in the interrogatories unless it has been approved by the Judicial Council; in practice, this means that the only instructions permissible with interrogatories are the ones provided with the form interrogatories. The use of discovery has been criticized as favoring the wealthier side in

11009-954: The subject matter of a treaty to which the US and approximately sixty nations are signatories, the Hague Evidence Convention . In at least two respects, when a non-US litigant seeks evidence from the United States, there is an advantage in using section 1782 over the Hague Evidence Convention: In the post- Intel era, most applications under section 1782 have been filed by companies from the United Kingdom , Germany , and other European countries. There has been an increase in recent years in applications from Middle Eastern countries. Other than Japan , few Asian litigants have filed section 1782 applications in recent years. In 2010, Chevron Corporation filed several section 1782 applications to obtain evidence in connection with

11118-470: The treaty to accede to the Convention. At least two member states authorize private lawyers to be involved in the evidence-gathering process. Under the law of the British Virgin Islands, if a witness is summoned to testify pursuant to a letter of request, a legal practitioner for any party may administer the oath to the witness. The availability of a private lawyer to be directly involved

11227-509: The witness in a closed proceeding without parties or counsel present. The witness's attendance was secured by service of a subpoena ad testificandum at least 14 days before the date of the examination. In London, the examinations took place before a master or an examiner in Chancery Lane . Outside of London, the parties' attorneys were supposed to jointly stipulate to a group of lay commissioners (typically four, though only two were needed for

11336-530: Was echoed by Justice Stephen Breyer in his dissent in the Supreme Court's Intel decision. Justice Breyer stated that "discovery and discovery-related judicial proceedings take time, they are expensive, and cost and delay, or threats of cost and delay, can themselves force parties to settle underlying disputes." Nevertheless, having American courts give effect to discovery under section 1782 has been justified to "encourage foreign countries by example to provide similar means of assistance to our courts". Writing in

11445-435: Was filed under seal with the court, and was not revealed or "published" (in the terminology of the time) to parties or counsel until shortly before the trial in which it was to be used. An 1899 treatise on evidence law explained the rationale for this method of examining a witness in equity: it allowed a witness "ample time" for "calm recollection" as they answered questions read by a neutral person and an opportunity to correct

11554-461: Was not present. Major reforms enacted in New York in the late 1840s and in England in the early 1850s laid the foundation for the rise of modern discovery by imposing a clear separation between pleadings and discovery as distinct phases of procedural law. Discovery devices could now be invoked independently of the pleadings. The New York reforms went much farther, by directly merging common law and equity procedure (which would also happen in England in

11663-516: Was that for most of its history, Chancery was a one-judge court. The Crown always attempted to operate the judiciary of England and Wales as cheaply as possible—by leaving it severely understaffed in comparison to its counterparts on the European continent —thereby leaving the chancellors no choice but to delegate factfinding procedures like the taking of depositions. Despite these defects, English settlers brought discovery and depositions with them to

11772-566: Was used by the requesting authority, and (b) whenever the letter of request is not executed (in whole or in part), the requesting authority is to be informed immediately and advised of the reasons. The convention also applies to pre-trial discovery : obtaining of evidence prior to trial without the prior approval of a judge. While this is a common practice in many common law countries, it was felt unacceptable by many others. Countries can however object to application to pre-trial discovery through an objection according to Article 23. As of April 2019,

11881-507: Was “insufficient support” for the argument that Malta and China (the two relevant States) had “intended to imbue the ICSID arbitration panel with government authority". The Southern District of New York reached the same conclusion as to an ICSID arbitral panel in In Re: Application of Webuild S.p.A. and Sacyr S.A. 2022 WL 17807321 (Dec. 19, 2022). The case law so far is split as to whether

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