DISCOVERY

A category of procedural devices employed by a party to a civil or criminal action, prior to trial, to require the adverse party to disclose information that is essential for the preparation of the requesting party's case and that the other party alone knows or possesses.

Civil Procedure

Discovery devices used in civil lawsuits are derived from the practice rules of equity, which gave a party the right to compel an adverse party to disclose material facts and documents that established a cause of action. The federal rules of civil procedure have supplanted the traditional equity rules by regulating discovery in federal court proceedings. State laws governing the procedure for civil lawsuits, many of which are based upon the federal rules, have also replaced the equity practices.

Discovery is generally obtained either by the service of an adverse party with a notice to examine prepared by the applicant's attorney or by a court order pursuant to statutory provisions.

Discovery devices narrow the issues of a lawsuit, obtain evidence not readily accessible to the applicant for use at trial, and ascertain the existence of information that might be introduced as evidence at trial. Public policy considers it desirable to give litigants access to all material facts not protected by privilege to facilitate the fair and speedy administration of justice. Discovery procedures promote the settlement of a lawsuit prior to trial by providing the parties with opportunities to realistically evaluate the facts before them.

Discovery is contingent upon a party's reasonable belief that he or she has a good cause of action or defense. A court will deny discovery if the party is using it as a fishing expedition to ascertain information for the purpose of starting an action or developing a defense. A court is responsible for protecting against the unreasonable investigation into a party's affairs and must deny discovery if it is intended to annoy, embarrass, oppress, or injure the parties or the witnesses who will be subject to it. A court will stop discovery when used in bad faith.

Information Discovered Pretrial discovery is used for the disclosure of the identities of persons who know facts relevant to the commencement of an action but not for the disclosure of the identities of additional parties to the case. In a few jurisdictions, however, the identity of the proper party to sue can be obtained through discovery. Discovery pursuant to state and federal procedural rules may require a party to reveal the names and addresses of witnesses to be used in the development of the case.

Discovery is not automatically denied if an applicant already knows the matters for which he or she is seeking discovery since one of its purposes is to frame a pleading in a lawsuit. On the other hand, discovery is permitted only when the desired information is material to the preparation of the applicant's case or defense. Discovery is denied if the matter is irrelevant or if it comes within the protection of a privilege.

Privileged Information Privileged matters are not a proper subject for discovery. For example, a person cannot be forced to disclose confidential communications regarding matters that come within the attorney-client privilege. Discovery cannot be obtained to compel a person to reveal information that would violate his or her constitutional guarantee against self-incrimination. However, if a party or witness has been granted immunity regarding the matters that are the basis of the asserted privilege, that party can be required to disclose such information on pretrial examination.

A person who refuses to comply with discovery on the basis of an asserted privilege must claim the privilege for each particular question at the time of the pretrial examination. An attorney or the court itself cannot claim the privilege for that person. However, a person may waive the privilege and answer the questions put to him or her during discovery.

Objections A party may challenge the validity of a pretrial examination if asserted prior to trial. The merits of such an objection will be evaluated by the court during the trial when it rules on the admissibility of the evidence. If the questions to be asked during a discovery, such as the identity and location of a particular witness, pose a threat to anyone's life or safety, a party can make a motion to a court for a protective order to deny discovery of such information.

Refusal to Respond Failing to appear or answer questions at an examination before trial might result in a contempt citation, particularly if the person has disobeyed the command of a subpoena to attend. If discovery is pursuant to a court order, the court will require that the party's refusal to answer questions be treated as if the party admitted them in favor of the requesting party. Such an order is called a preclusion order since the uncooperative party is precluded from denying or contradicting the matters admitted due to his or her intentional failure to comply with a discovery order.

Costs

A party who makes a motion for a court to order discovery may be required to pay or make provision for payment of costs—expenses incurred in obtaining discovery when it is granted. If the party eventually wins the lawsuit, the court may demand that the costs be paid by the adversary in the proceedings.

Types of Discovery Devices

Discovery of material information is obtainable by use of depositions, interrogatories, requests for the production and inspection of writings and other materials, requests for admission of facts, and physical examinations.

Depositions A party to a lawsuit may obtain an oral pretrial examination of an adverse party or witness—the deponent—who is under oath to respond truthfully to the questions. This interrogation is known as a deposition or an examination before trial (EBT). The notice or order of examination must specify the particular matters to be discovered, and the line of questioning is usually restricted to such matters. However, the scope and extent of the examination is within the discretion of the court.

In some jurisdictions, a deponent may bring along documents to refresh his or her memory and facilitate testimony. Such materials can be used only when relevant to the line of questioning to which the deponent is subject and only by the designated deponent.

Interrogatories Interrogatories are specific written questions submitted by a person, pursuant to a discovery order, to an adversary who must respond under oath and in writing. Interrogatories must state questions in a precise manner so as to elicit an answer that is pertinent to the issues being litigated.

Production and Inspection A litigant is generally entitled to the production and inspection of relevant documents in the possession or control of an adversary pursuant to discovery. The applicant must have a reasonable belief that such evidence is necessary to the lawsuit if discovery is to be granted.

Requests for Admissions of Facts A party may ask an adversary to admit any material fact or the authenticity of a document that is to be presented as evidence during the trial. This procedure, called a request for an admission of fact, facilitates the fair and efficient administration of justice by minimizing the time and expense incurred in proving issues that are not in dispute.

Only facts, not matters or conclusions of law or opinions, can be admitted when there is no disagreement between the parties. The requesting party does not have to make a motion before a court prior to making such a demand but must comply with any statutory requirements. The matters or documents to be admitted must be particularly described and there must be a time limit for a reply. The response should admit or deny the request or explain in detail the reason for refusing to do so—for example, if the request calls for admission of a matter of law. Failure to make a response within the specified time results in the matter being admitted, precluding the noncomplying party from challenging its admission during the trial.

Physical Examination A mental or physical examination of a party whose condition is an issue in litigation may be authorized by a court in the exercise of its discretion.

Criminal Procedure

Under common law, there was no discovery in criminal cases. As of the early 2000s, in federal and many state criminal prosecutions, only limited discovery is permissible, unlike the full disclosure of information available in civil actions. Limited discovery prevents the possible intimidation of prosecution witnesses and the increased likelihood of perjury that might result from unabridged disclosure. The obligation of the prosecutor to prove the case beyond a reasonable doubt, the possibility of an unconstitutional infringement upon a defendant's right against self-incrimination, and violations of the attorney-client privilege pursuant to a client's right to counsel also hinder complete discovery. A defendant who requests particular documents from the government may be required to submit items of a similar nature to the government upon its request for discovery. The disclosure of false evidence or the failure of the prosecution to disclose documents that are beneficial to the defense can result in a denial of due process of law.

The federal Jencks Act (18 U.S.C.A. § 3500 [1957]) entitles a defendant to obtain access to prosecution documents necessary to impeach the testimony of a prosecution witness by showing that the witness had made earlier statements that contradict present testimony. Theoretically, the defense cannot receive the statements until the witness has finished testimony on direct examination, but, in practice, such statements are usually available before then. Many states have similar disclosure rules.

further readings

Grenig, Jay E. 2002. Handbook of Federal Civil Discovery and Disclosure. 2d ed. St. Paul, Minn. West group.

Haydock, Roger S. 2002. Discovery Practice. 4th ed. New York: Aspen Law & Business.

cross-references

Deposition; Immunity; Interrogatories; Self-Incrimination.

187. Discovery

1. Archimedes (287–212 B.C.) discovered fluid displacement principle while bathing. [Gk. Hist.: Wallechinsky, 272]
2. Blue Nile its source discovered by James Bruce, c. 1773. [Br. Hist.: NCE ]
3. Dead Sea scrolls ancient manuscripts of Biblical commentaries found in cave. [Jew. Hist.: Wigoder, 152]
4. Eureka! exclaimed Archimedes, on discovering specific gravity principle. [Gk. Hist.: NCE, 137]
5. Franklin, Benjamin (1706–1790) used a simple kite to identify lightning as electricity. [Science: NCE, 1000]
6. Kaldi Arabian goatherd; alleged discoverer of coffee (850). [Arab. Hist.: Grun, 97]
7. New World Christopher Columbus’s expeditions to Americas from 1492 led to further exploration and development. [Eur. Hist.: Jameson, 107–108]
8. Newton, Sir Isaac (1642–1727) a falling apple said to have inspired theory of gravitation. [Science: NCE, 1929]
9. Pacific Ocean Its American coast discovered by Vasco Nuñez de Balboa in 1513. [Amer. Hist.: NCE, 213]
10. Philippines discovered by Magellan during his attempted circumnavigation of the globe. [World Hist.: Benét, 618]
11. Rosetta Stone inscribed in three languages; key to hieroglyphics. [Fr. Hist.: Brewer Dictionary, 935]
12. San Salvador Bahamian island, Columbus’s first landfall in his discovery of America. [Am. Hist.: Benét, 214]
13. Sutter’s Mill where James Marshall discovered California gold (1848). [Am. Hist.: NCE, 2662]
14. Tutankhamun’s tomb incredible archaeological find unlocks the past. [Egypt. Hist.: NCE, 2809]

Discretion (See PRUDENCE .)

DISCOVERY,

DISCOVERY, the name given to three historically significant vessels. Two British war vessels during the period of discovery of the northwest coast of America bore this name: a small vessel of 300 tons used as the companion ship to the Resolution in Capt. James Cook's third voyage (1776–1780), on which he explored the northwest coast to the Arctic Ocean; and a sloop-of-war of about 400 tons' burden, the chief ship of Capt. George Vancouver's explorations of North America (1792–1794). The third vessel was NASA's space shuttleDiscovery, the successful maiden voyage of which, on 29 September 1988, restored confidence in a space program nearly decimated by the Challenger disaster.

BIBLIOGRAPHY

Fisher, Robin. Vancouver's Voyage: Charting the Northwest Coast, 1791–1795. Vancouver, Wash.: Douglas and McIntyre, 1992.

Marquardt, Karl H. The Anatomy of the Ship Captain Cook's Endeavour. London: Conway Maritime Press, 1995; 2001.

Robert MoultonGatke/a. r.

See alsoCook, James, Explorations of ; Explorations and Expeditions: U.S. ; Vancouver Explorations .

dis·cov·er·y / disˈkəvərē/ • n. (pl. -ver·ies) 1. the action or process of discovering or being discovered: the discovery of the body | he made some startling discoveries. ∎  a person or thing discovered: the drug is not a new discovery. 2. Law the compulsory disclosure, by a party to an action, of relevant documents referred to by the other party.

Discovery, literary magazine in paperback book format, whose six issues appeared between 1953 and 1955. Its editor was Vance Bourjaily, who wrote an article, No More Apologies in the second issue, comparing the great older generation of American authors, including Faulkner and Hemingway, with some of his contemporaries, including his contributors, Nelson Algren, Kenneth Fearing, Herbert Gold, Norman Mailer, and William Styron.

Discovery A series of missions planned by NASA, based on small-scale spacecraft that are designed to proceed from development to flight within less than three years for a cost of less than $150 million.

discovery in law: see procedure ; evidence .

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pulsatory, purificatory, reificatory, revelatory, rotatory •natatory • elucidatory • castigatory •mitigatory • justificatory •imprecatory • equivocatory •flagellatory • execratory • innovatory •eatery, excretory •glittery, jittery, skittery, twittery •benedictory, contradictory, maledictory, valedictory, victory •printery, splintery •consistory, history, mystery •presbytery •inhibitory, prohibitory •hereditary • auditory • budgetary •military, paramilitary •solitary • cemetery • limitary •vomitory • dormitory • fumitory •interplanetary, planetary, sanitary •primogenitary • dignitary •admonitory, monitory •unitary • monetary • territory •secretary • undersecretary •plebiscitary • repository • baptistery •transitory •depositary, depository, expository, suppository •niterie •Godwottery, lottery, pottery, tottery •bottomry • watery • psaltery •coterie, notary, protonotary, rotary, votary •upholstery •bijouterie, charcuterie, circumlocutory •persecutory • statutory • salutary •executory •contributory, retributory, tributary •interlocutory •buttery, fluttery •introductory • adultery • effrontery •perfunctory • blustery • mediatory •retaliatory • conciliatory • expiatory •denunciatory, renunciatory •appreciatory, depreciatory •initiatory, propitiatory •dietary, proprietary •extenuatory •mandatary, mandatory •predatory • sedentary • laudatory •prefatory • offertory • negatory •obligatory •derogatory, interrogatory, supererogatory •nugatory •expurgatory, objurgatory, purgatory •precatory •explicatory, indicatory, vindicatory •confiscatory, piscatory •dedicatory • judicatory •qualificatory • pacificatory •supplicatory •communicatory, excommunicatory •masticatory • prognosticatory •invocatory • obfuscatory •revocatory • charlatanry •depilatory, dilatory, oscillatory •assimilatory • consolatory •voluntary • emasculatory •ejaculatory •ambulatory, circumambulatory, perambulatory •regulatory •articulatory, gesticulatory •manipulatory • copulatory •expostulatory • circulatory •amatory, declamatory, defamatory, exclamatory, inflammatory, proclamatory •crematory • segmentary •lachrymatory •commentary, promontory •informatory, reformatory •momentary •affirmatory, confirmatory •explanatory • damnatory •condemnatory •cosignatory, signatory •combinatory •discriminatory, eliminatory, incriminatory, recriminatory •comminatory • exterminatory •hallucinatory • procrastinatory •monastery • repertory •emancipatory • anticipatory •exculpatory, inculpatory •declaratory, preparatory •respiratory • perspiratory •vibratory •migratory, transmigratory •exploratory, laboratory, oratory •inauguratory • adjuratory •corroboratory • reverberatory •refrigeratory • compensatory •desultory • dysentery •exhortatory, hortatory •salutatory • gustatory • lavatory •inventory •conservatory, observatory •improvisatory •accusatory, excusatory •lathery •feathery, heathery, leathery •dithery, slithery •carvery •reverie, severy •Avery, bravery, knavery, quavery, Savery, savory, savoury, 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