Discovery , in the laws of the United States and other countries, is a pre-adjudication procedure in a lawsuit in which each party, through civil procedure law, may obtain evidence from other parties or parties by finding a device such as a request for answers to interrogatories, requests for document creation, demand for acceptance and deposition. Discovery may be obtained from non-parties that use a subpoena. When the discovery request is rejected, the requesting party may request court assistance by filing a motion to force the invention.
Video Discovery (law)
United States
Under the laws of the United States, civil discovery is extensive and can search disclosure of reasonably calculated information to lead to the discovery of acceptable evidence. This is a much broader standard than relevance, as it reflects on the exploration of potentially relevant evidence, rather than really relevant evidence. (The question of the scope of relevance is taken care of before trials in movement in the limina and during the trial with objections.) Certain types of information are generally protected from discovery; this includes information that is preferred and work products of the opposing party. Other types of information may be protected, depending on the type of case and the status of that party. For example, juvenile criminal records are generally not to be found, peer review findings by hospitals in case of medical negligence are generally unfounded and, depending on the case, other types of evidence may not be found due to privacy reasons, difficulties and/or costs in fulfilling and for other reason. (Criminal discovery rules may differ from those discussed here.) Electronic discovery or "e-discovery" refers to the discovery of information stored in electronic format (often referred to as Electronic Stored Information, or ESI).
In practice, most civil cases in the United States are resolved after they are found. Upon discovery, both parties often agree on the relative strengths and weaknesses of each side and this often results in a completion or summary decision, which eliminates the costs and risks of the experiment.
The discovery is also available in criminal cases. Under the rules defined in Brady v. Maryland , the prosecutor is obliged to provide the defendant with any information that is liberating or potentially exempt, without a request by the defense. Further discovery is available if initiated by the defendant. For example, the discovery request may be for the production of witness names, witness statements, information on evidence, requests for an opportunity to examine concrete evidence, and for each report prepared by expert witnesses who will testify at the hearing.
If the defendant in a criminal case requests the invention from the claimant, the prosecutor may request reciprocal discovery. The right of prosecutor is considered proportional as it arises from the defendant's request for discovery. The ability of the prosecutor to obtain the discovery is limited by the right of the Fifth Amendment of the accused, in particular the constitutional protection of the accused against self-torture.
Federal law
Discoveries in the United States are unique compared to other common law countries. In the United States, discovery is mostly done by disputants themselves, with relatively little judicial oversight. Federal Federal Procedure Guideline Instructions in the U.S. federal court system Most state courts follow the same version based on FRCP, Chapter V "Depositions & Discovery" [1].
According to the Federal Rules of Civil Procedure, the plaintiff must initiate a conference between the parties after the complaint is submitted to the defendants, to plan the discovery process. The parties shall endeavor to approve the proposed discovery schedule, and submit the Discovery Plan submitted to the court within 14 days of the conference. Thereafter, the major discovery process begins which includes: initial disclosure, deposition, interrogation, request for acceptance (RFA) and request for document creation (RFP). In most federal district courts, formal requests for interrogations, requests for receipts and requests for production are exchanged between the parties and are not brought to justice. However, parties may propose a movement to force the discovery if a response is not received within the FRCP timeframe. Parties may file a motion for a protection order if the discovery request becomes too burdensome or for the purpose of harassment.
In federal criminal prosecutions, the right of discovery comes from a number of important decisions and statutes of the Supreme Court, the most important being,
- Brady v. Maryland, 373 US 83 (1963), based on which a prosecutor is required to disclose to any defendant any material that is unlawful or who will indict his credibility. of the prosecution witness. Brady also applies to evidence that would alleviate the sentence of the accused if the defendant is punished.
- Jencks v. The United States, 353 US 657 (1957), and the Jencks Act, which was then passed by Congress, under which a federal prosecutor is required to make any witness statements in government ownership that relates to witness testimony, if the witness will testify against defendant.
- Giglio v. United States , 405 US 150 (1972) and the resulting Giglio rule, in accordance with any agreement with witnesses who can call the credibility of the witness into question should be disclosed in court. Consequently, any bargain of defense or agreement made by the prosecutor with witness in lieu of testimony should be disclosed to the defense as part of the discovery process.
The formal discovery process for federal criminal prosecution is outlined in the Federal Rules of Criminal Procedure, Rule 16.
District of Columbia
The District of Columbia follows the federal rules, with some exceptions. Several deadlines are different, and litigants can only use the High Court D.C. Forty interrogators, including sections and sub-sections, may be presented by one party on the other. There is no requirement for "privileged logs": Federal regulations 26 (b) (5) are not adopted by the High Court D.C. Where it is stated that "litigants may only use the DC High Court" after corrections are found in accordance with the Columbia District Upper District Rules on Civil Procedure Article 73 (b) Review and Appeals of Review which states: "Judicial review of the final order or an incoming assessment on the direction of the hearing commissioner is available on the actions of the party to the High Court judge appointed by the Chief Judge to conduct the review... Once the review is completed, the appeal may be made to the District of Columbia Court Appeals. "This rule is essentially implies that in a civil action, if a listener is authorized by all parties to conduct litigation and not a judge, upon request for review or appeal, the motion shall first be reviewed by a High Court judge against the same standards as a motion to appeal to the Judge Judgment n High to the Court of Appeals, but the right to appeal to a higher court still remains.
Country law
Many countries have adopted federal discovery procedures; some strongly adhere to the federal model, others are not so close. Some countries take a completely different approach to discovery. Many countries have adopted the Uniform Interstate Depositions and Discovery Act to provide a uniform process when discoveries are conducted outside the state.
Alaska
In the Alaska criminal court, the invention is governed by Rule of Criminal Procedure 16 (Cr.R.16). The scope of the invention is broad and includes more than required by Brady v. Maryland , 373 U.S. 83 (1963). The discovery process is intended to provide sufficient information for information requests, to speed up trials, minimize surprises, provide opportunities for effective cross-examination, and meet legal process requirements. As far as possible, the discovery before the trial must be as comprehensive and free as possible, consistent with the protection of persons, effective law enforcement, and hostile systems.
A prosecutor is obliged to disclose to the defendant the following material, and make available to the examination and copying: (i) the name and address of the witness, (ii) a written or recorded statement from the defendant; (iii) written or recorded by a defendant, (iv ) any books, papers, documents, photographs or real objects with the prosecutor intending to use in the proceedings, (v) any prior criminal convictions of the accused or other witnesses. In practice, this means that criminal defendants in Alaska may review police reports, laboratory reports, audio/video recordings, witness statements, and more, before they proceed to court. Most defendants will also have this material far enough in advance to examine before making a decision about a possible defense agreement.
California
In California state court, the invention is governed by the Civil Discovery Act of 1986 (Title 4 (Section 2016-2036) of the Civil Procedure Code), which is then amended. A large number of appeals court decisions have interpreted and interpreted the provisions of the Act.
The written invention of California generally consists of four methods: Demand for Production of Documents, Interrogatories Form, Special Interrogatories, and Application for Acceptance. Responses to California discovery requests are not continued: responding parties need only respond with facts as they are known at the date of response, and are not obliged to update their responses when new facts are known. This led many parties to order one or two interrogators until the closing day of the discovery, when they asked if any previous response to the discovery had changed, and then asked what the change was. The California deposition is not limited to one day, and the objections must be made in detail or they are permanently released. A party may only file 35 specific interrogations written on the other party unless the party submitting proposes a "requirement statement". No "subparts, or combined, conjunctive, or disjunctive questions" may be included in an interrogation. However, the "form of interrogator" which has been approved by the State Judicial Council is not taken into account within this limit. In addition, no "introductory or instructional words" may be included in the interrogatories unless approved by the Judicial Council; In practice, this means that the only instruction that is allowed with interrogatories is that provided with the form of interrogatories.
Criticism
The use of discovery has been criticized for supporting richer parties in a lawsuit, which could allow parties to drain their respective financial resources in an atrition war. For example, one can make potentially costly information requests and spend time for others to fulfill; respond to invention requests with thousands of documents of relevance questioned in this case; file requests for protective orders to prevent key witness deposition; and take other measures that increase the difficulty and cost of discovery.
It has been argued that although the objective of the invention is to equate the playing field between the parties, the discovery rule creates a multi-level field in favor of the party that controls the information required by the other party. Rather than encouraging discovery, rules are described as encouraging lawyers to find new ways to manipulate and change or hide information.
Some supporters of tort reforms have made similar accusations that the discovery was used by plaintiffs' lawyers to charge the accused to force settlements in helpless cases to avoid the cost of discovery. However, others argue that the discovery of harassment is an exaggerated concept, that discovery works well in many cases, and the exaggeration of American litegness and cost leads to confusion within the judicial system.
Maps Discovery (law)
Electronic discovery
Electronic discovery, also known as ediscovery, involves the discovery of data and electronic recordings. It is important that the data obtained through ediscovery be reliable, and therefore acceptable.
Currently two main approaches to identifying responsive materials on custodian machines are:
(1) where physical access to an organization's network is possible - agents are installed on every custodian machine that drives large amounts of data for indexing across the network to one or more servers that must be attached to the network or
(2) for examples where it is impossible or impractical to attend the physical location of the custodian system - the storage device is attached to the custodian machine (or company server) and then every manual collection instance is deployed.
In connection with the first approach there are some problems:
- In the general collection process, large volumes of data are sent across the network for indexing and this has an impact on normal business operations
- The indexing process is not 100% reliable in finding responsive material
- IT administrators are generally unhappy with installing agents on custodial machines
- The number of concurrent custodial machines that can be processed is very limited due to network bandwidth required
The new technology is able to overcome the problems created by the first approach by running the application entirely in memory on every custodian machine and only pushing responsive data across the network. This process has been patented and manifested in a tool that has been the subject of a conference paper.
In relation to the second approach, although self-collection is a hot topic in eDiscovery, concerns are being addressed by limiting custodial involvement to simply plugging devices and running applications to create encrypted containers of responsive documents [1]
In England and Wales
The process of discovery in British and Wales jurisdictions has been known as "disclosure" since the civil procedure reforms introduced by Lord Justice Woolf in 1999.
Disclosure is for many types of causes of the action (but not for example Personal Injuries that have Additional Sections of procedures rules to follow) governed by Section 31 of the Civil Rules of Events (CPR), and the 31B Practice Directive (PD). As in the United States, certain documents have privileges, such as letters between lawyers and experts. Full details are given in legal professional rights (England & Wales).
The usual forms of invention are general findings and special findings because the disputing parties are unlikely to reach agreement on what should be disclosed. This is reflected in the current discovery rules that emphasize compliance with timelines, service rules, a list of appropriate documents and rules of privilege set out in Section 31 of CPR and PD 31B. After the right has made the general discovery process in accordance with the rules and procedures of the invention, the document is deemed to be found, ie the document is available for review. Inspeksiability refers to procedural and legal elements: the first concerning the production of documents clerically; the latter concerning the relevance test (Peruo Guano v Financiaso Compagneiage (1881) 10 EWR 125) and linkage test.
See also
- Initial case assessment
- Second request
- subpoena ad testificandum
- subpoena tecum call
References
External links
- Federal Rules of Civil Procedure: Deposition and Invention
Source of the article : Wikipedia
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