pretrial discovery

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Pretrial Discovery is a stage in civil and some criminal actions where parties exchange information on the evidence that will be presented in court. The broad purpose of pretrial discovery is to ensure that parties in a lawsuit have mutual knowledge and access to all relevant facts that are essential to litigation. This makes certain that lawsuits are decided on the basis of the facts themselves, rather than whether facts have been concealed. 

Each party uses discovery devices to obtain evidence from other parties. Some of the common devices used include the following:

  • Deposition: a witness’s sworn out of court testimony
  • Interrogatory: a list of questions a party sends to another party that the recipient must answer under oath
  • Request for Admission: the affirmation or denial of the truth of a statement under oath

Pretrial Discovery in Civil Procedure

Under the federal scheme, pretrial discovery is governed by Rules 26 to 37 of the Federal Rules of Civil Procedure. Rule 26(b)(1) broadly states that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” However, the rule also establishes a proportionality requirement that the discovery must be proportional to the needs of the case and consider six factors: (1) the importance of issues at stake, (2) the amount in controversy, (3)the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issue, and (6) whether the burden or expense of the discovery outweighs the expected benefit.

In addition, while discovery allows parties to access information that would otherwise be impossible or challenging to obtain, courts have recognized the need to protect attorney work product to encourage effective representation under the United States’ adversarial litigation system. The Supreme Court, in Hickman v. Taylor, established the Attorney Work Product Privilege doctrine, now codified as FRCP Rule 26(b)(3), which states in part that “a party may not discover documents and tangible things that are not prepared in anticipation of litigation or for trail by or for another party or its representative.”

Pretrial Discovery in Criminal Procedure

Pretrial discovery in criminal procedures is generally governed by statute, legislative policy, or precedent. Like in civil procedure cases, Attorney Work Product Privilege applies according to the Supreme Court in United States v. Nobles. Although some jurisdictions recognize that discovery is allowed under the Due Process Clause, they disagree on whether this right comes from the Fifth or Fourteenth Amendment. In addition, they also differ on the degree to which pretrial discovery is allowed.

For example:

In the Western District of New York, a defendant has pretrial discovery right “to specific exculpatory evidence which is material either to guilt or punishment” under the Fifth Amendment’s Due Process Clause.

The Supreme Court of Wyoming states that a defendant does not have the “right to compel the prosecution to disclose all relevant information in its files,” since the defendant “does not have a general state or federal constitutional right to conduct wide-ranging criminal discovery in the state’s files.”

In Florida, there is no constitutional right to discovery in a criminal case. However, “defendant do have a right to pretrial discovery under Florida Rule of Criminal Procedure 3.220(b).”

[Last updated in August of 2020 by the Wex Definitions Team]