Also known as: pre-trial discovery · pretrial discoveries · discovery · pretrial disclosure
Written by attorneys · grounded in primary & secondary sources — see below
The exchange of information and evidence between parties before trial to reveal facts and develop evidence for use at trial. Modern rules expand its scope to prevent surprise and promote settlement. Limits apply to protect privileges and prevent abuse.
Priscilla Parks sued Pioneer Energy alleging internal documents showed safety violations. She lacked the documents at filing but identified them as likely obtainable through discovery. The court accepted the pleading because the factual contentions were expected to gain support after reasonable investigation.
Patricia Patel's counsel served broad document requests on Premier Manufacturing seeking unrelated personnel files. The requests lacked any connection to the contract dispute and imposed heavy compliance costs. The court sanctioned counsel for failing to make a reasonably diligent effort to limit the requests to proper matters.
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Philip Powell, a mid-level engineer at Peak Performance, reported product defects to in-house counsel at his supervisor's direction. Opposing counsel sought the emails in discovery. The court upheld the privilege because the communications were made to obtain legal advice.
Pilar Pena bought industrial equipment from Prosperity Investments. The equipment contained a latent wiring flaw that inspection before acceptance could not reasonably reveal. After delivery and use, the flaw surfaced. Pena revoked acceptance because the difficulty of pre-acceptance discovery justified the later action.
Phoebe Park converted Parker Phillips's equipment under a reasonable but mistaken belief of ownership. Upon discovering the error, she promptly tendered the equipment back and kept the offer open. The court held the tender timely after discovery of the mistake.
Pioneer Energy and Premier Manufacturing participated in mediation to resolve a supply dispute. A party later sought production of statements made during the session. The court ruled the mediation communications privileged and not subject to discovery.
Discovery must be proportional to the needs of the case and may be limited when the proposed discovery is outside the permitted scope. Courts also protect privileged materials and work product prepared in anticipation of litigation.
A party may do so when the contentions are specifically identified and will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
The privilege protects communications between corporate counsel and all corporate employees when made at the direction of superiors for the purpose of securing legal advice.
A lawyer must not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
…uses." Myers v. United States , 272 U. S. 52, 151. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in…