Gathering Evidence in England and Wales and the USA : discovering discovery in the USA

Pre-trial discovery

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.”[1]  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.”[2]   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.

Procedural tools

There are a number of tools within the arsenal of pre-trial discovery to enable the gathering of evidence:

1- Disclosure

Much like in the system in the UK, disclosure in the US Federal courts requires parties to automatically share routine evidentiary information at three points of the case: the beginning, later in the pre-trial process and just before the trial begins.  Initially, parties must disclose basic information about every witness they intend to call, copies of documents or items supporting their claim or defence, their schedules of loss and any information about insurance or payment agreements.  Later in the pre-trial process parties must disclose the identity and qualifications of any expert witnesses they will be using, along with a summary of their conclusions.  Right before the trial begins the parties must disclose which evidence they will be relying on.  This is the point at which any objections can be raised by either party.

2 – Depositions

Depositions are a key mechanism of the pre-trial discovery process, in which the parties gather evidence by recording sworn out-of-court testimony of each other’s witnesses.  Depositions are initiated and supervised by the parties and their legal representatives, and do not usually involve the court directly.  All parties can question the witness during a deposition and in theory their attorneys cannot ‘coach’ the witness in what to say.  Equally, attorneys cannot usually object to deposition questions put to the witness.

A deposition’s contents are classed as ‘hearsay’ and therefore cannot usually be relied on as evidence during the trial.  A deposition can be relied on in court, however, if (i) the witness admits something in a deposition which adversely affects them; (ii) the witness’ deposition contradicts their testimony at trial; or (iii) a witness is unavailable to attend trial.

Depositions can be extremely lengthy and are usually very costly, particularly taking into account attorney fees.  A cheaper alternative is to depose a witness by written questions, whereby a list of questions is submitted to the witness in advance.  The deposition then consists of the witness answering those questions alone.   Attorneys need not be present, which makes the process cheaper than normal depositions.  However, written depositions are likely to be less useful, as witnesses cannot be thoroughly questioned on answers given.

3 – Interrogatory letters

Interrogatories are a cheaper alternative to depositions or written depositions for carrying out discovery.  An interrogatory letter is a list of questions sent by one party to another which the witness or addressee must answer under oath.  Responses to interrogatory letters may be used at trial.  Unlike depositions, attorneys are able to assist their clients with their answers to these questions, so responses are likely to be carefully drafted.  The number of questions that a party can ask in an interrogatory letter is usually limited by the court; under the Federal Rules, a maximum of 25 questions may be asked without leave of the court.

4 – Requests for admission

Requests for admission are quite specific discovery devices, effectively allowing a party in a civil action to request that the other admit or deny the truth of a statement under oath.  Equally, this device may be used for one party to request the other to verify whether documents are genuine.  If such statements are sworn to be true or such documents sworn to be genuine, they will be considered to be true and genuine for all purposes for the trial.  Requests for admission are often used towards the end of the discovery process, once the issues have been condensed, to settle any contested issues and simplify the trial going forward. 

From the above devices, it can be seen that witnesses may have an important part to play in American litigation and evidence gathering.  The courts rely on witness testimony as well as documentary evidence, and the gathering of witness evidence can be one of the most time consuming and expensive aspects of the pre-trial discovery process.

Scope

Much like ‘privilege’ in England and Wales, in most states work done by attorneys is not obtainable through disclosure and is protected from discovery regardless of the subject matter.  Work done in preparation for litigation is also immune insofar as it is carried out by an attorney; work done by non-attorneys, on the other hand, would generally be discoverable.  Other than this narrow exemption, a very range of “documents, electronically stored information and tangible things”[3] must be revealed by the parties.

What some readers may find controversial is the ongoing effect of discovery.  ‘After-discovered evidence’ is evidence that did exist at the time of trial but could not have been discovered at that time.  Upon discovering it after the trial, a previously defeated party may use that newly-discovered evidence as grounds for a new trial to be ordered or to ask the court to reconsider a motion.  This illustrates that American discovery can have an impact even after a trial, and an even go so far as to reopen a motion in a case that is already closed.

Even more worrying for foreign parties to American litigation, however, is the potential for American-style discovery and its obligations to reach across borders.  As recently observed, “the federal law of the United States does not acknowledge borders when it comes to providing evidence.  American judges will not hesitate to order parties to produce evidence located abroad.”[4]   This could mean that an American judge could enforce Federal rules of discovery against a French party to litigation.

There has been resistance to the American discovery process by the French courts in particular, which have unsurprisingly seen it as abusive and an encroachment on the judicial sovereignty of its courts, that being the lynchpin of the French legal system.  Blocking Statutes have been introduced in several countries to “impose a penalty upon a national for complying with a foreign court’s discovery request.”[5]   Such a statute was introduced in France in 1980, which forbade any ‘economic information’ meant to be used within a foreign judicial or administrative procedure from being collected, whether written, spoken or in any other form.  This essentially makes it illegal for evidence to be gathered and sent outside of French territory.  In theory, contravention of this law has potentially serious repercussions, with non-compliance being punishable by 6 months in prison or a fine of €18,000.  However, these penalties have only been actually imposed in recent years, and appear not to have acted as a genuine obstacle for American authorities, which have continued to enforce their requests within French territories.  In the case of Société Nationale Industrielle Aéropostiale v United States District Court, the American Supreme Court even stated that the French Blocking Statute “does not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute”.

A more palatable option for French parties to American litigation would be for the American parties to rely on and apply mechanisms introduced by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 (the Hague Convention).

Under Chapter I of the Convention, letters of request can be sent to the Office for International Cooperation of the French Ministry of Justice to enable foreign litigants to rely on the French State’s powers of enforcement to gather evidence.  If such a letter is sent, it must be executed as long as the request for evidence is valid and cannot be denied on grounds of competency of the courts.  Should an American party comply with the Hague Convention, this would afford the French party more protection against potentially abusive “fishing expeditions” than if the American courts were to impose their own rules of evidence-gathering and issue a discovery order.

Either case would require the French party to comply with an evidence-gathering procedure which is inevitably more burdensome than under French rules.  The scope of American discovery therefore has the potential to reach outside of the USA and foreign companies doing business with American entities should be well aware of the “war machine of judicial procedure”[6] they may find themselves faced with should a dispute arise.

Impact of these provisions

These broad discovery provisions were introduced with the intention of enabling fact finding and uncovering the truth.  The rationale behind the introduction of this far-reaching system was that if all evidence is revealed before trial actually began, not only would it promote fairness and justice, but would also encourage settlement by allowing the parties to assess the strengths and weakness of each other’s cases.  However, a reported entitled ‘Field Survey of Federal Pretrial Discovery’ carried out by the Project for Effective Justice of Columbia Law School in 1965 concluded that “no positive evidence is found that discovery promotes settlement”.[7]

Equally, whether this is the actual result of American discovery is open to debate.  Complying with discovery rules is difficult, extremely time consuming and inevitably leads to great expense for all parties involved.  This could therefore easily be abused, if, for example, one party has deeper pockets and is able to put financial pressure on their opponent by purposefully protracting the discovery process and forcing it to engage in fishing expeditions.  There may be some financial reprieve in that the Federal Rules allow parties to grant their opponent access to all their documents or records, leaving them to find the information for themselves in their own time.  This, of course, comes with risks, and does not reduce the expense of reviewing and responding to discovery requests or carrying out depositions.

Failure to comply

What gives discovery even more clout in the American legal system is that, should a party fail to comply with a discovery order, they will be in contempt of court.  This will most likely amount to indirect civil contempt of court, whereby the court can impose sanctions, such as a fine or even jail time, to coerce the party to perform an action; in this case, to comply with discovery orders.  The party would be released from the sanction should they then comply with the discovery order.

Conclusion

Although only a brief summary of a very broad and complex topic, it can be concluded that US discovery is exhaustive, time consuming and expensive.  It is a vital stage of any American civil litigation which takes place, for the most part, with little or no court involvement.  What is revealed during the discovery process will inevitably govern how the case will progress and could even lead to early settlement before the trial even begins.  Parties can force the other to disclose evidence in their possession and witness evidence may have a key role to play. 

US discovery has such a wide reach that it may have implications even once the trial is closed, or require non-American parties to abide by American discovery rules.  Foreign parties contracting with American entities should therefore be fully aware of what procedures they may be forced to comply with and preserve and maintain a clear document trail to make any discovery process easier and less time consuming.  French parties contracting with American entities should keep in mind the repercussions compliance with an American discovery order may lead to should a conflict arise.  It is important that legal advice is sought on a case by case basis to ensure that discovery is handled carefully and with great diligence. 

Next month’s article will consider evidence-gathering in France and how greatly it differs from the procedures in England and Wales and particularly the US.  While US discovery could be said to be on one end of the spectrum, the system in France is certainly on the other.