Discovery (law)

Lore & Background

Discovery evolved out of a unique feature of early equitable pleading procedure before the English Court of Chancery. A plaintiff's bill in equity was required to plead 'positions,' which were statements of evidence the plaintiff assumed to exist and believed lay within the defendant's knowledge. These strongly resembled modern requests for admissions, requiring the defendant to plead only whether they were true or false. The practice of pleading positiones in canon law originated with the practice of the courts of the Italian communes in the early thirteenth century, though positiones were unknown to the Romans. At some point between the reign of Elizabeth I and the late seventeenth century, positions were gradually replaced by interrogatories: written questions the defendant was required to truthfully respond to under oath. However, interrogatories could only elicit admissible evidence and could only request evidence in support of the plaintiff's case, not either side's case. This was purely a one-way procedure, as interrogatories could only be pleaded as part of a bill. A defendant needing evidence for defenses had to file a cross-bill.

Reader's Guide

Discovery did not exist at common law, but its availability in equity attracted litigants in actions at law, who began filing bills in equity to obtain discovery in aid of those actions. This led to the mid-15th century innovation of the bill to perpetuate testimony of a potential witness whose advanced age or poor health implied they would not survive to testify at trial. In such proceedings, parties pleaded written interrogatories read aloud to the witness in a closed proceeding without parties or counsel present. The witness's attendance was secured by a subpoena ad testificandum. The resulting document was filed under seal and not revealed until shortly before trial. This procedure for ex parte out-of-court pretrial examinations under courts of equity came to be called a 'deposition.' It continued as an evidence preservation device and became the standard method for developing the factual record in equity from third-party witnesses. The process was fundamentally inquisitorial, driven by the court, not adversarial, likely because early Chancellors and masters were clerics with training in Roman and canon law. Secrecy was thought essential to prevent perjury and witness tampering. Despite defects, English settlers brought discovery and depositions to the Thirteen Colonies, including the tradition of courts of equity appointing masters to take depositions.

Did You Know?

• Discovery evolved from 'positions' in early equitable pleading, which strongly resembled modern requests for admissions.
• The practice of pleading positiones originated with the courts of the Italian communes in the early thirteenth century.
• Early interrogatories could only elicit admissible evidence and only in support of the plaintiff's case, not the defendant's.
• The procedure for ex parte out-of-court pretrial examinations under courts of equity came to be called a 'deposition.'