Discovery (law)

The Discovery ( English legal language = preliminary investigation , court-ordered presentation of evidence ) is a formal proof procedures in the US litigation.

procedure

In preparation for the oral hearing, the parties are obliged to identify the evidence to which they will later refer in the proceedings. This is to prevent a party from being "surprised" by new evidence at a later stage of the procedure against which it may no longer be able to defend itself adequately ( trial by ambush ).

The most common evidence is the testimony on oath ( deposition ), a kind of anticipated cross-examination in which both parties are allowed to participate. It is also possible to answer questions in writing on oath ( interrogatories ).

In addition, the request to submit documents and the submission of declarations for the record ( subpoenaing ), the physical examination of a party and the examination of documents for their authenticity are common.

A special feature is the safeguarding of electronic documents (digital evidence) such as e-mails or chat logs (" eDiscovery ").

meaning

The important role of discovery is shown in the fact that plaintiffs can assert their claims even without possessing their own evidence if they can expect to find the evidence from the other party or from third parties. This role of discovery, however, justifies criticism, because it can encourage contentiousness in court.

The deposition is an expensive procedure. The cost of the verbal transcript alone is more than $ 1,000 per day of questioning. It is rare for a person to be interrogated in just a few hours. The procedure usually subjects the interrogated to high psychological pressure. Those questioned are always sworn in. The court does not take an active part in the interrogation, but only regulates any appeals by lawyers.

The discovery is completed before the start of the trial , the oral hearing with evidence assessment by the judge or the jury ( jury ). At the end of the oral hearing, the parties usually submit their opinions based on the proven legal and factual situation. The judge can then issue a summary judgment if the complaint is ready for a decision based solely on the legal situation and undisputed facts.

Situation in Germany

The civil judicial Edition obligation is with regard to the Beibringungsgrundsatz less far than in the US.

In criminal recognition method the result of a decision in the preparatory process if appropriate court-ordered evidence of the opening of the main procedure ( § 202 et seq. CCP).

In general and special administrative jurisdiction , the facts on which the judgment is based is determined ex officio without being bound by the parties' requests for evidence.

Web links

Individual evidence

^ American Bar Association: How Courts Work. Steps in a Trial. Discovery.
↑ "And relevance is broadly defined to include evidence admissible in court as well as evidence that is 'reasonably calculated to lead to the discovery of admissible evidence.'" C. Noorda: E-Discovery and Data Privacy: A Practical Guide, Alphen aan the Rijn 2011

[1] American Bar Association: How Courts Work. Steps in a Trial. Discovery.

[2] "And relevance is broadly defined to include evidence admissible in court as well as evidence that is 'reasonably calculated to lead to the discovery of admissible evidence.'" C. Noorda: E-Discovery and Data Privacy: A Practical Guide, Alphen aan the Rijn 2011