Inspection of documents

Traditionally, in the English common law system, parties who filed lawsuits that requested legal remedies could file a request in the Court of Chancery to inspect of documents in the possession of an opposing party, as long as the documents "tended to prove 'the case' at law of the party filing the [request]."[https://books.google.com/books?id=p3VMAAAAYAAJ&pg=PA400 Section 724 Revised Statutes of the United States Authorizing Production Before Trial], 56 {{smallcaps|U. Pa. L. Rev.}} 400, 400 (1908). If the documents were not privileged, the court would order the opposing party to provide the requested documents to a clerk in the Court of Chancery so that duplicates could be made.[https://books.google.com/books?id=p3VMAAAAYAAJ&pg=PA400 Section 724 Revised Statutes of the United States Authorizing Production Before Trial], 56 {{smallcaps|U. Pa. L. Rev.}} 400, 400 (1908) (noting that the Court of Chancery would issue an injunction to stay proceedings in the lawsuit until the documents were provided). These documents could then later be used as evidence at trial.[https://books.google.com/books?id=p3VMAAAAYAAJ&pg=PA400 Section 724 Revised Statutes of the United States Authorizing Production Before Trial], 56 {{smallcaps|U. Pa. L. Rev.}} 400, 400 (1908) (noting that this was a "familiar practice").

In many jurisdictions, parties who wish to inspect documents must deliver a formal request for inspection to the parties that possess those documents.See, e.g., Todd L. Archibald & James Cooper Morton, [https://books.google.com/books?id=QcEdI-rFnMoC&pg=PA37 {{smallcaps|Discovery: Principles in Practice}}] 37 (2004) (Noting that in Canada, "[t]he inspection of documents is conducted in a similar fashion in all jurisdictions); {{smallcaps|Fed. R. Civ. P.}} 34(a). The Notes of the Advisory Committee that amended this Rule 34 state: "The revision of Rule 34 to have it operate extrajudicially, rather than by court order, is to a large extent a reflection of existing law office practice." Id., Notes of Advisory Committee on Rules—1970 Amendment. These requests usually must describe the documents that would be inspected.See, e.g., {{smallcaps|Fed. R. Civ. P.}} 34(b)(1)(A); {{smallcaps|Cal. Code Civ. P.}} 2031.030(c)(1). Once the request has been delivered to the party in possession of the documents, that party generally must allow for inspection or respond with objections within a specified period of time.See, e.g., {{smallcaps|Fed. R. Civ. P.}} 34(b)(2)(A). Some jurisdictions allow parties in the case to inspect documents that are in the possession of individuals or organizations that are not a party in the case.Kent D. Kehr, [http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=3479&context=law_lawreview Production and Inspection of Documents, Papers, and Tangible Things in Missouri: A Comparison to the Federal Rules], 1955 {{smallcaps|Wash. U. L. Q.}} 413, 414-15 (1955); see also {{smallcaps|Fed. R. Civ. P.}} 34(c). In general, courts have discretion to compel parties to disclose documents, and courts may also limit a party's right to access or inspect documents.Thomas Scott Murley, [http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2518&context=flr Compelling Production of Documents in Violation of Foreign Law: An Examination and Reevaluation of the American Position], 50 {{smallcaps|Fordham L. Rev.}} 877, 878-79 (1982); Paul Matthews & Hodge M. Malek, [https://books.google.com/books?id=fCLx6DIspBcC&pg=PA439 {{smallcaps|Disclosure}}] 439 (2012). In England, for example, when determining whether a party should be allowed to inspect documents, courts balance the party's need for that evidence against any public interests that would be protected by denying the request for inspection.Peter Murphy, [https://books.google.com/books?id=yxVOZB13xr0C&pg=PA431 {{smallcaps|Murphy on Evidence}}] 431-32 (10th ed. 2007). Courts may also impose sanctions on parties that do not comply with requests for inspection.Thomas Scott Murley, [http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2518&context=flr Compelling Production of Documents in Violation of Foreign Law: An Examination and Reevaluation of the American Position], 50 {{smallcaps|Fordham L. Rev.}} 877, 879 (1982) (discussing balance between discovery requirements and foreign nondisclosure laws). Some commentators, such as Daniel C. Girard and Todd I. Espinoza, argue that parties are rarely penalized for failing to comply with requests for inspection of documents and that "[s]ervice of evasive discovery responses has become a routine." Daniel C. Girard & Todd I. Espinoza, [http://www.law.du.edu/documents/denver-university-law-review/v87-2/girard_pdf.pdf Limiting Evasive Discovery: A proposal for Three Cost-Saving Amendments to the Federal Rules], 87 {{smallcaps|Denv. L. Rev.}} 473, 475 (2010).

• Interrogatories
• Request for admissions
• Subpoena duces tecum

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Category:Discovery (law)