In pre-trial discovery, parties may have the right to inspect documents that are relevant to the case. In civil cases, the concept of "documents" has been interpreted broadly, and it generally includes any item that contains descriptive information, including electronic records.
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]." 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. These documents could then later be used as evidence at trial.
In many jurisdictions, parties who wish to inspect documents must deliver a formal request for inspection to the parties that possess those documents. These requests usually must describe the documents that would be inspected. 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. 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. 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. 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. Courts may also impose sanctions on parties that do not comply with requests for inspection.
- Inspection of Documents, Black's Law Dictionary (2d ed.); see also Section 724 Revised Statutes of the United States Authorizing Production Before Trial, 56 U. Pa. L. Rev. 400, 400-01 (1908) (discussing history of right to inspect documents in the United States).
- Adrian Keane, The Modern Law of Evidence 250-51 (7th Ed. 2008).
- Section 724 Revised Statutes of the United States Authorizing Production Before Trial, 56 U. Pa. L. Rev. 400, 400 (1908).
- Section 724 Revised Statutes of the United States Authorizing Production Before Trial, 56 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).
- Section 724 Revised Statutes of the United States Authorizing Production Before Trial, 56 U. Pa. L. Rev. 400, 400 (1908) (noting that this was a "familiar practice").
- See, e.g., Todd L. Archibald & James Cooper Morton, Discovery: Principles in Practice 37 (2004) (Noting that in Canada, "[t]he inspection of documents is conducted in a similar fashion in all jurisdictions); 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.
- See, e.g., Fed. R. Civ. P. 34(b)(1)(A); Cal. Code Civ. P. 2031.030(c)(1).
- See, e.g., Fed. R. Civ. P. 34(b)(2)(A).
- Kent D. Kehr, Production and Inspection of Documents, Papers, and Tangible Things in Missouri: A Comparison to the Federal Rules, 1955 Wash. U. L. Q. 413, 414-15 (1955); see also Fed. R. Civ. P. 34(c).
- Thomas Scott Murley, Compelling Production of Documents in Violation of Foreign Law: An Examination and Reevaluation of the American Position, 50 Fordham L. Rev. 877, 878-79 (1982); Paul Matthews & Hodge M. Malek, Disclosure 439 (2012).
- Peter Murphy, Murphy on Evidence 431-32 (10th ed. 2007).
- Thomas Scott Murley, Compelling Production of Documents in Violation of Foreign Law: An Examination and Reevaluation of the American Position, 50 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, Limiting Evasive Discovery: A proposal for Three Cost-Saving Amendments to the Federal Rules, 87 Denv. L. Rev. 473, 475 (2010).