In civil cases in the USA, evidence is primarily gathered by parties using the formal investigatory pre-trial discovery process. The current Federal Rules were originally adopted in 1938, and provide extremely broad discovery provisions, requiring parties to disclose “any non-privileged matter that is relevant to any party’s claim or defense.” The rules in place prior to 1938 were restrictive and essentially required a party to have in its possession evidence proving its case before filing a claim. The Federal Rules adopted in 1938 drastically changed the system, however, and a party who strongly believes it has been wronged can now file a claim even if it has hardly any evidence, and use the evidence gathered during pre-trial discovery to build up their case.
In the USA, disclosure is compulsory and has an extremely broad scope; a recent article in the International Business Law Journal even comments on the “seemingly limitless reach of American discovery.” Two key characteristics of pre-trial discovery are that (i) it takes place, for the most part, extra-judicially with minimal court intervention and (ii) a party can actually force the other to provide them evidence, whether or not it is of genuine interest or relevance to the case.
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