Research On Discovery Procedure

Evidence is the objective material which proves the fact of civil case,and the evidence system is the core of civil procedure. Only when the materials are collected together, put into the process of civil cases and used by the party as well as the courts, can they become decisive evidence in the case. So collecting evidence is of great importance in civil procedure. The civil code has established the system of the evidence security as well as emphasized the proof burden of the party in China, however, the law had not made specific provisions on measures of collecting materials. Before economic globalization and more international communications, it is necessary for us to refer and study successful experience from developed counties. So the author of the paper tries to analyze the development and function of discovery procedure and its impact on China's civil procedure. Besides, she hopes to be of help to China's judicial reforms in order to broaden the remedy for Chinese citizens.This paper includes six parts. Part â… expounds the shape of discovery. Discovery is derived from legal practice of Equity Law in England in late 16 century. With the inosculation of the Common Law and Equity Law, discovery came into being among the reform of the civil suit in England. After established as a legal proceeding in 1938 in America, discovery has been adopted in the evidence law by many countries. Discovery is a procedure for the party to obtain information of the case and to collect proofs from the other party and a third party before pretrial. The procedure discovery usually begins after the case is sued and ends before the trial. Discovery is used for one party of the issue to gain related information from the other in order to make preparation for the trial. The parties in action can collect the materials, disclose facts of the case, ascertain the issue rapidly, and accelerate amicable settlement with efficiency by discovery, which is an independently process in civil procedure. Discovery also ensures the orderliness of the trial. Part â…¡establishes the scope of discovery. The Federal Civil Rules 26(b), which applies to all forms of discovery, provides generally that the parties may obtaindiscovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action. When the application would hurt social relationship protected by the state, the party that is asked to produce evidence can refuse the request, and the court would admit the refusal. These are privilege and work product. The privilege includes the Attorney-Client Privilege, Marital Privilege, Physician-Patient Privilege, Clergy-Penitent Privilege, Accountant-Client Privilege, and so on. Discovery collateral condition may be attached to work product that is prepared for the action by the party and his agent attorney. If the party either requests the other party to produce evidence unduly or the request brings unnecessary burdens and excessive costs to the other, the court will restrict the application according to its functions and powers. Though discovery is widely applied, yet it only functions within the coverage of law. Further more, the privilege of the parties will be well protected.Part â…¢ introduces the methods of discovery. Various forms of discovery include depositions, interrogatories, requests for produce documents and inspect land, requests for admission, physical and mental examinations. Except for the last one, each of these modes of discovery is designed to operate extra judicially, that is, without the intervention of the court. It is only where one party refuses to comply fully with the other's discovery request that the court intervenes. Upon motion by a person from whom any of these forms of discovery is sought, the court may make any order necessary to protect the discoveree from undue annoyance, embarrassment, or harassment. Such an order, called a protective order, may limit the scope, terms, methods, or use...