Country insight

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged.

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders.

The Austrian Code of Civil Procedure (Zivilprozessordnung) lists the following five types of evidence:

• documentary evidence;
• witness testimony;
• expert evidence;
• inspections; and
• the hearing of the parties.

Each party must offer all evidence necessary to substantiate the statements included in its respective pleadings. Documentary evidence is normally adduced to the court by the submission of the document and a reference made to it in the party's written or oral argument. The Austrian Code of Civil Procedure is based on the legal principle of the free evaluation of evidence (Freie Beweiswürdigung), which means that Austrian courts enjoy wide discretion as to how they assess the submitted evidence. The court may not, however, admit evidence that it considers irrelevant to the matters in dispute, or which appears to have been submitted with the intention of delaying the proceedings.

During proceedings, a party may ask the court to order the other party to disclose a particular document in its possession so that it can be relied on as evidence in the proceedings. In the context of discovery requests, evidence may be obtained by the court ex parte.

The requesting party must state the contents of the requested document as precisely and completely as possible, and indicate all facts and matters which are to be proven by the document. The requesting party also must prove that the document is in the possession of the opposing party. A distinction is made between joint documents and other documents. A joint document is drawn up in multiple people’s interests or records mutual legal relations. If the court orders that a joint document be disclosed, the obligation to present the document is final and cannot be avoided by the opposing party. If the document in question is not a joint document, the party opposing disclosure may refuse to present the document by invoking one of the grounds for refusal listed in Section 305 of the Austrian Code of Civil Procedure, e.g. if the content concerns matters of family life, if the disclosure of the document would be disgraceful to the party or third parties or would involve the risk of criminal prosecution, etc. The refusal to present a document can also be justified in specific circumstances, such as where it contains commercially sensitive information.

On the other hand, Section 304 of the Austrian Code of Civil Procedure lists certain grounds which, if present, are determinative in favor of disclosure, e.g. if the party opposing disclosure has referred to the document in the proceedings, committed itself under civil law to deliver or present the document, or if the document concerned is a joint document.

In accordance with the jurisprudence of the Austrian courts, no discovery / disclosure process exists. Further, even evidence obtained through illegal means is, in principle, admissible in proceedings, save where it was obtained in violation of constitutionally guaranteed fundamental rights.

There is no principle of disclosure in Bahrain similar to common law jurisdictions. Parties substantiate their claims using the evidence on which they wish to rely. If a party makes a non-specific request for discovery of documents or information, the request will not be accepted by the court. Further, the court may, at its own discretion, order a party to submit any additional evidence it deems relevant. 

However, it is possible for a party to request the court to order, or the court on its own power may order, the opposing party to disclose documents that are defined in a specific request. The party requesting the disclosure must demonstrate that it has a legitimate interest in the documents for the purpose of the case. The submission of documents can only be requested once legal proceedings have commenced. However, in practice, orders for disclosure are rare.

For civil proceedings in Belgium, there is no formal discovery or disclosure process. Each party bears, in principle, the burden of proving its allegations and will attach to its written pleadings the list of documents (or other information) on which it relies. Copies of such information shall be provided to the other party and, shortly before the hearing, each party provides the court with a bundle with all the evidence upon which it relies.

The parties are free to decide which information they wish to rely on and submit to the court. However, each party also has a duty of good faith, which implies a certain degree of cooperation in the production of evidence.

A party that has reasons to believe its adversary is in possession of a document that is relevant to the court's decision may solicit the production of said document, if needed, with the intervention of the court. Where there are strong indications that a third party has a document that is of relevance to the proceedings, the court may order that this document, or a copy thereof, be sent to the other party and filed with the court. One will have to clearly specify the document it wishes to be produced. Document production requests cannot, in other words, be used as fishing expeditions. Documents, or information more generally, that is covered by legal professional privilege as well as (but for some exceptions) correspondence between attorneys cannot be produced. A person requested or ordered to submit such documents can raise privilege as a defence.

If a party fails to comply with the order without a legitimate reason, the court may order the party (or, on occasion, third party) to pay damages. The court can also, either in the initial order or at a later stage at the request of one of the parties, link a penalty (dwangsom/astreinte) to the production of the documents in question (for instance, per day the defendant has not complied with the order). Altering or destroying evidence that is ordered by a court to be produced is a criminal offence under Belgian law.

The court further has the power to take measures aimed at ensuring that evidence is properly gathered and preserved. For this purpose, the court may order the appointment of a third party (such as a notary or bailiff) to hold and preserve certain information, which could be useful if the originals are of importance or if there are reasons to fear that one of the parties may otherwise try to alter or destroy the information in question.

Under the Brazilian Code of Civil Procedure, parties must ordinarily rely on their own evidence. However, a party can request the disclosure of documents or objects if there are grounds for believing that documents are in the other party’s possession and that such evidence is relevant to the case. The other party must be granted five business days to reply to such requests. Also, where the court considers the analysis of a document or object necessary for reaching a decision, it may order the party in possession of such evidence to submit it for analysis.

If a relevant object(s) or document(s) is in possession of a third party, he/she/it may be ordered to present it to court. Furthermore, if a party or  the third party refuses to comply with the disclosure order without an acceptable reason, the court may issue a search and seizure order.

For proceedings that are defended, parties will enter the discovery phase once the exchange of pleadings is complete. Discovery in Canada includes the production of relevant documents and oral examinations for discovery. 

The scope of discovery is defined by the pleadings insofar as the pleadings set out the relevant issues in the litigation. Thus, if a document is relevant to an issue identified in the pleadings, it should be produced (subject to certain exceptions, such as any privilege that might attach to the document) even if the document might be unhelpful to the party producing it. Quebec has a different starting point for discovery. Specifically, a party to a Quebec proceeding need only disclose those documents on which it intends to rely at trial, unless the opposing party specifically requests further production.

If a party refuses to produce a document that another party believes is relevant to the issues in the proceeding, the latter party may bring a motion for production of the document. A court will order such production where the relevant documents are not protected by privilege and where the request for production is “proportional.” As an example of the principle of proportionality, a court could refuse to order a party to spend considerable time and resources to produce a large volume of documents where such documents are only marginally relevant to the issues in the proceeding. 

In addition to producing relevant documents, the parties will participate in oral examinations for discovery. During such oral examinations, each party puts forth a witness to be questioned under oath by the other parties (or the other parties’ respective lawyers where such parties have lawyers) about the matters that are relevant in the litigation. Examinations for discovery, among other things, allow the parties to:

• learn about the other parties' cases;
• obtain helpful admissions; and
• assess the credibility and the demeanor of the witnesses giving evidence on discovery. 

Where a party to be examined for discovery is an individual, the witness on such examination will be the individual.  

Where the party to be examined for discovery is a corporation, the corporation’s witness (typically, but not always, an employee of the corporation) should be the person with the greatest knowledge of the matters that are relevant in the litigation. 

Absent agreement of the parties or a court order, each party only produces a single witness that is examined for discovery by the other parties. Quebec is the exception to this general rule: under its Civil Code of Procedure, a party may examine more than one witness for each opposing party. As a matter of practice, parties in Quebec will attempt, among other things, to determine the number and identity of witnesses to be examined in the course of negotiating a case protocol. If the parties cannot agree to the terms of a case protocol, they may seek the court’s intervention. 

More often than not, the witness produced by a party for examination for discovery will also be a witness for that party at trial.  

Where a witness being examined does not know the answer to a relevant question, they may be asked to give an undertaking to seek out the answer. Similarly, a witness being examined may be asked to undertake to produce any relevant documents that have not yet been produced.

Unlike some other jurisdictions, witnesses being examined for discovery in a Canadian proceeding may refuse to answer a question on the bases, among others, of relevance (i.e. the question does not relate to any of the issues raised in the pleadings) or privilege. If the witness refuses to answer an arguably proper question, the examining party may bring a motion to compel the witness to do so. Likewise, if the witness refuses to provide an undertaking to produce additional relevant documents, the examining party may bring a motion to compel such production. 

Parties to a Canadian proceeding require leave of the court to examine a non-party for discovery.

The general rule in Chilean civil litigation is that parties submit their own evidence. Nevertheless, the eventual plaintiff may request a Court to grant a pre-trial submission of evidence to the eventual defendant, though this pre-trial request is confined to the cases invoked by the law (affidavits; exhibition of an object or document, such as accounting books, testaments, public documents, property titles, among others; and, private document signature recognition).

Furthermore, pre-trial requests of evidence may also involve personal inspection by the judge, expert opinions or interrogations. This is because there are serious circumstances that advice granting the pre-trial request or that certain elements or situations could easily disappear.

All pre-trial requests must state which civil claim the plaintiff will file and a brief explanation of the arguments and basis of the claim to be filed and the necessity of the pre-trial request.

In the PRC, although parties must substantiate their cases with evidence, in principle they are free to determine what evidence they want to use. A court may, however, order a party to submit certain additional evidence if it considers it necessary. Failure to comply with the court’s order may cause the court to draw adverse inferences. Further, whilst there is no concept of legal privilege in the PRC, any evidence containing state secrets, personal information or business secrets will not be publicly presented during an open hearing.

Under the PRC Civil Procedure Law, a party may request the court to investigate and collect evidence on its behalf if the party and its representatives are unable to collect it for objective reasons, including because: (i) it is archived by state authorities and the party has no right of access to it; or (ii) it contains national secrets, trade secrets or personal information. The court is also authorized to investigate and collect evidence which the court deems necessary. Procedurally, if a party requests the court to investigate and collect evidence on its behalf, the requesting party should submit a written application stating:

• basic information of the person or entity to be investigated (name, address, workplace, etc.);
• the evidence to be investigated and collected;
• the reasons for making the request;
• the facts to be proved by the evidence; and
• the definite clues.

Pursuant to Article 95 of Interpretation of the Supreme People’s Court on Application of the PRC Civil Procedure Law (the SPC Interpretation on Civil Procedure), the request for collection of evidence should be rejected if the evidence requested is unrelated to the facts to be proven, is meaningless for proving the facts or if the court considers that it is unnecessary to investigate it.

It should be noted that, in practice, courts rarely grant requests for the collection of evidence. This is partly due to the vaguely defined concept of “objective reasons”, which leaves the discretion to the court, and partly due to the fact that such requests will place additional burdens on the courts, which already struggle with heavy caseloads.

Under the law of the PRC, interim relief for evidence preservation is available both during and prior to the commencement of legal proceedings if evidence is at risk of being destroyed or may become difficult to obtain at a later date. A party can apply to the competent court for evidence preservation, and the court can also take preservation measures on its own initiative. The party requesting the evidence preservation will usually be required by the court to provide security in case such evidence preservation causes losses to other related parties.

Theoretically, the plaintiff can apply to the court for the court’s investigation and collection of evidence before the commencement of proceedings. However, the court rarely grants such applications before the commencement of proceeding.

The parties must substantiate their claims and statements with evidence, but they are generally free to determine which evidence they want to rely on.

Evidence will be evaluated subject to the court’s sole discretion. The court will make no investigations or assess other evidence than what has been produced and presented by the parties during the proceedings.

The court may order a party to submit certain evidence. A party may also request evidence to be submitted by the counterparty during the proceedings, but fishing expeditions are not permitted. The party requesting the submission should be specific in its request and prove that the requested evidence is relevant to the matter in dispute.

A party’s refusal to submit requested evidence could adversely impact the party’s position, as the court may draw adverse inferences from such a refusal.

Parties cannot usually be required to disclose privileged documents.

The presentation of evidence takes place during the main hearing. However, with the court's permission, evidence can also be presented before the main hearing in special circumstances. This typically applies if a party is at risk of losing their evidence (for example, a witness who is not expected to be able to testify during the main hearing due to illness or travel).

It is also possible to obtain evidence before the case is even initiated (taking evidence out of court). In such cases, the party must submit a request to the court, which grants permission if the court deems it appropriate.

Parties do not have to undertake “full” disclosure. Instead, the parties have the burden of identifying and securing evidence that supports their procedural claims and assertions.

If the documentary evidence is not available, the relevant party may request the court to order the other party or a third party to produce such documents. The requesting party should make clear that such documents are needed as evidence in the proceedings and must narrowly define the documents requested. The request for document production shall be without prejudice to the obligation of confidentiality of classified information and any other obligation of confidentiality imposed by law or recognised by the state. A party's breach of the obligation to produce documents does not reverse the burden of proof but may result in an assessment of the evidence against that party.

The draft Act on Collective Proceedings (class actions), which has not yet been adopted, provides an exception to this regime. According to this draft Act, the disclosure of documents will be possible under the terms that are described in detail in the below section titled “Class Action” of this guide.

 

In a civil law case, each party shall present the evidence it deems necessary in the case. A civil matter is initiated by a written application for a summons, in which the claimant should, as far as possible, indicate the evidence they intend to present in support of their action and what they intend to prove with each piece of evidence. It is also possible to present more evidence as the case moves forward. Parties and witnesses are generally not heard before the main hearing, but if it is necessary to hear a party or another person or to admit another account in order to clarify an issue on which an expert witness is to be heard, that may be done before the main hearing. Further, at a party’s request, a witness or expert witness may be heard or a document or object presented or an inspection conducted in a District Court in a civil matter in which the proceedings are not yet pending, if the right of the applicant may depend on the admittance of the evidence or the conducting of an inspection.

The court may on its own initiative decide to obtain evidence in a civil matter that is not amenable to settlement. Also, regardless of the nature of the matter, the court has the right to obtain an expert opinion on its own initiative. In addition, the court may order a party or a non-party to bring an object or a document in its possession to court on the request of a party, provided that the object or document could be of evidential significance in the case. This procedure is not intended to facilitate fishing expeditions and so the requesting party must define the document or group of documents that the request covers carefully. After hearing the other party and/or the party the request is directed at, the court will decide whether to permit the request. Where the document requested includes, for example, commercially sensitive information of a company or other privileged information, the court may oblige a party to produce a redacted copy of the document.

In France, the parties are free to choose the evidence in support of their respective claims. Each party must substantiate its claims and satisfy its burden of proof. Evidence is usually given in written form, including by way of affidavit.

Despite the above, the French Code of Civil Procedure allows for pre-action disclosure when (pursuant to Article 145 of the French Code of Civil Procedure):

• there is a legitimate reason to preserve or to establish the evidence before any trial; and
• the resolution of the dispute depends on this evidence.

The collection of evidence in such circumstances will most likely be done via an ex parte court order appointing a bailiff to preserve or establish such evidence. Only the investigating measures provided by the French Code of Civil Procedure may be ordered by the judge, who must ensure that the measure is not intended to supplement a lack of evidence on the part of the plaintiff. A recourse against such ex parte orders can be made before the judge having ordered the investigation measures to allow an adversarial debate.

During the course of the proceedings, if a party wishes to force another party to produce certain evidence, it may request the court to order production of such evidence, provided it can demonstrate that the evidence is relevant to the case. This gives rise to a discussion between the parties that is separate from the merits. If a party refuses to comply with a court order for the production of evidence, the court is entitled to draw any conclusion it deems appropriate based on the circumstances.

German law does not recognize the common law principle of extensive pre-trial disclosure or discovery. The taking of evidence is administered by the court. German courts can only rely on five methods to gather evidence: visual inspection; hearing witnesses, experts and the parties; and the production of private or public deeds. The procedure for production of deeds is rarely used, as the conditions for such disclosure are relatively difficult to satisfy and the court can only order the production of a specific document (section 421, seqq., ZPO).

The court can order a party to provide specific disclosure at the request of the other party or of its own volition. A request by a party to produce a document shall:

• specify the document or record;
• set out the facts the document or record is intended to prove;
• specify, as comprehensively as possible, the contents of the document or record;
• elaborate the grounds on which it is being alleged that the opponent has possession of the document or record; and
• set out the substantive grounds on which the other party is obliged to produce the document or record.

In civil proceedings in Hong Kong, a party generally has a duty to disclose to the other party all documents relevant to the case that are within their custody, power or control, even if some of the documents are not favourable to their case. The disclosure process is usually undertaken after the pleadings have been filed as this is the time at which the points of dispute between the parties have crystallized. However, the court may also order disclosure prior to the commencement of proceedings where an applicant is able to satisfy the court that they need to obtain such disclosure in order to determine whether or not a cause of action exists against a potential defendant. Evidence is generally not obtained ex parte, but is obtained through discovery where parties may exchange and inspect the documents included in the list of documents. The primary test for evidence to be admissible in court is the test of relevance (ie evidence on any issue in the case or which directly/indirectly enables the party receiving discovery to advance their case or damage the case of their adversary will generally be admissible).

Each party to a civil action must disclose the relevant documents it possesses in the form of a list, known as the list of documents. Except for documents that are privileged, all other documents must be provided to the other party on request or made available for the other party’s inspection. A party may refuse to disclose privileged documents to the other party. If there is a dispute as to whether a document is privileged, the court will make a final decision.

Prior to the commencement of proceedings, parties may make an application for pre-action discovery against prospective parties. However, pre-action discovery is limited to documents which are directly relevant (ie likely to be relied on in evidence by any parties or will support or adversely affect any party’s case in the intended proceedings) and an order will only be made if the court considers it to be necessary for fair disposal of the cause or for saving costs.

There is a continuing obligation to give discovery after the commencement of proceedings and additional documents may be disclosed in a supplemental list of documents.

In principle, each party is responsible for obtaining and disclosing the documents upon which it intends to rely. US-style discovery of documents is not recognized under Hungarian law.

In exceptional cases, an application for the preliminary taking of evidence may be filed by a party prior to or during the proceedings. Preliminary taking of evidence may be warranted if it is likely that the taking of evidence would not be successful, or would be considerably more difficult or time-consuming at a later stage of the proceedings, for example where a witness is suffering from a serious illness or is leaving the country, or where physical evidence is directly at risk of destruction or transformation.

The court decides on the application for preliminary taking of evidence after having heard the counterparty, except where the counterparty is unknown or in urgent cases. If the court exceptionally grants the application ex parte it serves the order permitting the preliminary taking of evidence on the counterparty together with the application. Both parties have the right to appeal against such an order under the general procedural rules.

The court may order disclosure of specific documents by the other side or a third party, on the request of a party to the proceedings. The court will only order disclosure of documents that a party is obliged to disclose under applicable civil law rules (for example, an employer is obliged by the Labor Code to give the employee a copy of their employment contract). Civil law does not have specific rules setting out which documents must be disclosed, so this rule can be difficult to interpret in practice.

Requests for disclosure must be specific and confined to documents necessary to evidence a specific statement made by the disclosing party (e.g. it would be permissible to request disclosure of warehouse records for a specific day, in order to prove the date of delivery claimed by the claimant, but it would not be permissible to request disclosure of all the warehouse records on the grounds they might contain evidence relevant to the case).

Requests for disclosure may be rejected for reasons of confidentiality, legal privilege or because the documents are not relevant to the dispute.

If the party cannot obtain a relevant document because it is in the possession of an official authority, the court is obliged to obtain the document on the party's behalf.

There is no obligation of discovery under Italian law.

This means that the parties are not obliged to share relevant documents unless an order to this effect is issued by a judge. Such orders can only be made when a party specifically requests a document to be disclosed and the judge deems such disclosure necessary. No such order can be issued by the court on its own initiative.

A party wishing to request the disclosure of specific documents must file the request within the three consecutive terms set by the judge to file supplemental written submissions and evidence requests (namely, the first term of 30 days from the date of the first hearing or any subsequent date that the judge deems appropriate, the second term of 30 days and the final term of 20 days). Each document request should:

• specifically identify the document(s) requested;
• prove that the party making the request has no access to the requested document(s) and that there are no alternative ways to get access to it; and
• explain why that document is relevant and material to the case.

The judge can permit the filing of all documents, even confidential documents between lawyers.

A party receiving a document request is not obliged to disclose the document requested. In practice, disclosure only occurs when the documents requested do not harm the disclosing party's case.

As soon as parties become aware of the possibility of Irish litigation, they are under an obligation to preserve any relevant evidence. The discovery process is designed to allow parties in civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Documents which are legally privileged must be listed in the discovery schedule, but they can be withheld from production. However, documents which are confidential or commercially sensitive must usually be produced (except in very limited circumstances). Documents which are discovered must only be used for the purposes of the case (and using those documents for any other purposes could be considered contempt of court).

Discovery usually takes place once the pleadings have closed. There is no provision for discovery to be sought before the case is commenced (although in certain cases a party may be able to seek a Norwich Pharmacal order which allows for a very limited form of discovery before the case is commenced).

Each party makes a written request to the counterparty for a list of all documents/data relevant to the dispute (and which the counterparty has, or previously had, in its possession, power or procurement). The request sets out the categories of documents being sought (and states the reasons why each category is required). If the counterparty refuses the request or disputes the scope of the categories, the requesting party applies to the court for an order requiring discovery to be provided. The court has the discretion to vary the terms of the categories of discovery which the parties are seeking. The parties then each swear an affidavit of discovery which lists all relevant, privileged and non-privileged documents, following which the documents which still exist (and are not legally privileged) are disclosed to the other side.

A party may also look for discovery against a non-party if the document is not reasonably available by other means. However, the applicant must meet a high standard of proof of relevance and necessity and the decision remains at the court’s discretion. The applicant will also bear the associated legal costs.

In Japan, the parties are free to determine which evidence they want to rely on in proceedings. In limited cases, Japanese courts have authority to order parties to disclose documents based on their relevance to the case. Parties seeking an order for disclosure must specify:

• the description of the documents;
• the name of the individual believed to hold relevant documents;
• the summary of the documents;
• the assertions to be proved by such documents; and
• the legal basis to request the disclosure.

US-style discovery proceedings do not exist in Japan. Therefore, the ability to obtain potentially beneficial evidence from an uncooperative opposing party is generally limited.

Discovery claims can be filed before and/or after the commencement of proceedings. However, the procedure before commencement of the litigation cannot force the party having the documents to submit it, and the scope is limited. Therefore requests must be made as orders are not available.

However, after the litigation has commenced, evidence can be obtained ex parte if the court issue the disclosing-order to the party following a request for the order; the court has no independent authority to issue a disclosing-order. However, the ability to obtain potentially beneficial evidence from an uncooperative opposing party is limited other than the disclosing-order.

Lastly, certain documents excluded from discovery claims for example, matters relating to the professional secrecy of public officials, matters relating to the professional secrecy of doctors and lawyers, and matters relating to technical secrecy may be excluded.

In Luxembourg, whilst parties are required to support their statements with evidence, they generally have the freedom to choose the evidence they wish to rely upon. Each party must substantiate its claims and satisfy its burden of proof. Evidence is usually given in written form, including by way of affidavit.

In addition, it is possible to apply to the courts for an order requiring the compulsory disclosure of documents by another party. This application can be made either before the commencement of legal proceedings on the merits or during the ongoing proceedings. With regards to the pre-proceedings application, it is typically initiated through a writ of summons and followed by a hearing involving both the claimant and defendant. However, it is important to note that this measure can also be unilaterally requested, notwithstanding the fact that such a procedure deviates from the standard bilateral process. To reflect this, an applicant is required to provide strong justification for pursuing the unilateral procedure.

In principle, the purpose of a disclosure application is not to enable “fishing expeditions”. The party making the request must have a legitimate interest, and the scope of the request should be limited to a specific group of documents. Additionally, the requested documents must be relevant to a legal relationship in which the requesting party is involved. It is also important to note that the request is not limited to physical documents; it can also include any (electronic) documents stored on electronic devices.

Finally, legal professional privilege applies to communications between attorneys and certain other professionals. Generally, parties cannot be compelled to disclose privileged documents.

Generally, discovery is not part of the civil procedure in civil law jurisdictions including Kuwait. Therefore, if a party requests general discovery, the request is unlikely to be granted by the judge or, any discovery will be conducted in a cursory fashion. As such, there is no principle of full disclosure in Kuwait and the parties may substantiate their claims with evidence they choose to use.

However, it is possible for a party to request the judge to order (or the court on its own volition may order) the opposing party to submit certain specified documents or to produce evidence. The submission of documents can only be requested during legal proceedings. The procedure, if ordered by the court, is expressly not meant to facilitate fishing expeditions. The party requesting the submission should have a legitimate interest and the request should cover a narrowly defined group of documents.

Furthermore, the court can, at its own discretion, give an interim judgment asking a party to submit certain additional evidence which the court considers essential to the case.

Mexico does not provide for discovery in the same manner as common law jurisdictions. Evidence production operates on the principle that each party is responsible for the presentation and procurement of its evidence.

However, the judge may take evidence from any person, whether is a formal party or a third party, and has authority to request any document for resolving the case, whether belonging to the parties or to a third party, without any limitation other than that the evidence must be legally admissible and directly related to the facts in dispute.

The judge may also repeat or extend the evidentiary phase, as he/she deems necessary.

Although parties must substantiate their statement with evidence, they are generally free to determine what evidence they want to rely on. However, a court may order a party to submit certain additional evidence. Refusing to provide this additional evidence could impact a party's position, as the court may draw adverse inferences from the party's refusal.

Further, it is possible to request for certain documents to be submitted. The submission of documents can be requested prior to or during legal proceedings. The procedure is not meant to facilitate fishing expeditions. The party requesting the submission should have a legitimate interest and the request should cover sufficiently specified documents. Furthermore, the requested documents must relate to a legal relationship to which the applicant is a party. The request is not limited to hard copy documents; it can also pertain to any (electronic) documents held on electronic devices. After hearing the counterparty, the district court will decide on the request. Legal professional privilege applies to communications from and between attorneys and certain other professionals. Parties cannot usually be required to disclose privileged documents.

In New Zealand, each party to civil litigation will have to provide discovery to the other parties. The High Court Rules impose an obligation on the parties to co-operate to ensure that the process of discovery and inspection is proportionate to the subject matter of the proceeding and, where possible, practical arrangements are adopted to reduce the scope and burden of discovery.

A statement of claim or statement of defence must be served together with initial disclosure, which must contain all the documents referred to in the pleading and any additional principal documents relied on to prepare the pleading.

After the exchange of pleadings, the parties must then go through the discovery process. Discovery orders must be discussed at the first case management conference.

There are two types of discovery orders available:

• standard discovery; or
• tailored discovery.

Standard discovery requires each party to disclose the documents that are or have been in that party's control and that are relied on or either support or adversely affect that party's own case or any other party's case. Tailored discovery is generally ordered where the parties agree to a smaller scope of discovery than standard discovery by agreeing to limited categories of documents to be discovered. Parties are encouraged by the court to agree on tailored discovery orders.

In limited circumstances, discovery may be ordered prior to the commencement of proceedings if a party can satisfy the court that they need to obtain discovery to find out whether a cause of action exists against a potential defendant. An application for discovery before proceedings have commenced must be made on notice.

Discovery can also be ordered against third parties that are believed to hold relevant documents, but the party applying for that discovery order must bear the reasonable costs of the third party in complying with the discovery order.

The discovery process involves the exchange of affidavits of documents that list the documents to be discovered in various sections and in accordance with the court’s electronic discovery protocol. Privileged documents must be listed but can be withheld from inspection.

The discovery process for civil proceedings before Norwegian courts is not expansive. Each party is under a general duty to present such evidence as is necessary to establish a proper and complete factual basis for the court’s decision. That general duty includes an obligation to disclose the existence of material evidence that is not in the other party’s possession, provided there is good reason to believe that the other party is not aware of such evidence. This obligation extends not only to documents supportive of a party’s case, but also to documents that are detrimental to it, if such documents are in a party’s possession or if a party is able to access them through a third party it controls. However, these disclosure obligations do not extend to privileged information communicated between a party and its lawyers (including in-house counsel). In addition, there are other categories of documents that may be exempted from production, including documents containing commercially sensitive information.

In practice, disclosure of documents is achieved through a process of documentary requests. Each party to civil proceedings has the right to request the other party or third parties to produce specific and narrow categories of documents relevant to the matter. The request has to be specifically identified and so-called “fishing expeditions” are prohibited. If a party or third party does not comply with the documentary request, the court may order the party to submit the requested evidence. Such a decision is not enforceable against the parties - only against third parties. However, failure to comply with an order to disclose documents may of course be given weight in the court’s assessment of the evidence and judgment. Further, both parties to the proceedings and third parties may be compelled by the court to respond to a request as to whether it is aware of evidence and to carry out necessary investigations for that purpose. However, the court may not request disclosure of evidence of its own initiative.

Before the commencement of legal proceedings disclosure of documents can be sought where they are of significance in a dispute to which the applicant may become a party or intervener, and there is either: (i) a clear risk that the evidence will be lost or considerably weakened, or (ii) there are other reasons why it is “particularly important” to obtain access to the evidence before legal proceedings are instigated. The latter threshold is somewhat unclear; the legislator refers to the lack of access to evidence as a potential barrier for a negotiated agreement between the parties, however, such a threshold would be higher than the threshold which applies to evidence disclosed after the commencement of proceedings.

When filing a claim, claimants in the Omani courts are required to produce documents that support their claim. The defendant has the right to have a copy of all documents submitted by the claimant and the right to respond or submit any documents they believe supports their position.

Both parties have the right to ask the court to issue an order to obtain certain documents from the other party or third party. However, there are often evidentiary issues as the party must prove that the document exists and that it is in the possession of the other party.

Under Polish law, parties are free to determine what evidence they want to rely on. All supporting material relating to the facts of a case constitutes evidence. The court has discretion to assess the credibility and weight of evidence, based on a review of the available material. The parties are obliged to present evidence in order to establish relevant facts to which they apply the law. The court may also admit evidence which has not been presented by a party (e.g. evidence introduced in an expert opinion or the deposition of a witness). In principle, however, the parties have the burden of submitting the evidence upon which they wish to rely.

Fishing expeditions are prohibited. Where a party wishes to obtain a specific document from the other party, it must submit a request to the court identifying the specific document along with the facts and circumstances which it may prove. The court may order the other party to disclose the document if it is satisfied that the document:

• exists (a party may claim that the requested document does not exist);
• is in the other party’s possession; and
• evidences a fact which is relevant to the case.

In addition, a court may order any person to produce a specific document which is (i) in their possession and (ii) evidences a fact that is relevant to the case.

The obligation to disclose a specific document may not apply if the document contains privileged or classified information.

If a party fails to produce a specific document which the court has ordered to be produced, the court will not impose a penalty on the non-disclosing party. However, during its assessment of the reliability and validity of evidence, the court will also assess the significance of a party’s refusal to present evidence (or a party’s interference with the taking of evidence). Unjustified refusal of third parties to provide a requested document(s) can lead to a penalty of up to PLN3,000 (EUR650).

Additionally, the evidence can be secured (during or prior to the start of proceedings), when there is a concern that it will become impractical or difficult to obtain it in the future, or when there is a need to record the existing state of affairs. In urgent cases (or where the adverse party cannot be identified or their residence is unknown), the evidence can be secured ex parte.

There is no obligation to provide full discovery under Portuguese law. This means that the parties are not obliged to share relevant documents unless an order to this effect is issued by a judge. Such orders can only be made when one party specifically requests a document to be disclosed by the adverse party and the judge deems such disclosure necessary. Requests which reference an excessively broad class of documents or information on a certain matter, or that will lead to non-specific searches will not be granted by the court.

The requesting party must indicate the facts it intends to prove with the documents requested. The disclosure request will only be granted by the court if the requesting party is unable to obtain the documents by other means or would have substantial difficulty in doing so. The court may also order the parties to disclose documents or other evidence of its own volition. Evidence can not be obtained ex parte.

In Portugal, the general rule is that each party shall allege and prove the facts on which the claim or the defense is based. Any facts not objected to by the opposing party will be deemed to be admitted and therefore proved. Therefore, only disputed facts will be subject to further evidence.

Generally, all evidence should be provided by the parties with their written pleadings. After the pleadings have been filed, the appropriate time to submit documents and other evidence, or to change the evidence previously submitted, is at the preliminary hearing.

The parties can amend their list of witnesses until 20 days before the trial hearing. If a party chooses to do so, the opposing party will have five days to do likewise.

Under Portuguese law, all individuals are under a duty to cooperate with the court in discovering the truth. This includes the duty to provide whatever documents or information are requested by the Court. However, certain documents such as privileged communication between lawyers or other documents containing professional secrecy are excluded from disclosure, unless the court grants a specific order, which only occurs when there is no other means of proving a fact which is essential to discover the underlying truth).

When filing a claim, claimants in the Qatari courts are only required to produce documents that support their claim. However, a litigant is entitled to request that its opponent be obliged to produce relevant documents if:

• it is permitted by Qatari law;
• the document is joint between the parties (i.e. relates to mutual obligations and rights between them); or
• if its opponent relies on it at any point in the proceedings.

There are often evidentiary difficulties for a party seeking disclosure of a document as it has to prove that the document exists and that it is in the possession of its opponent.

Evidence is primarily presented by the parties in their written submissions (the claimant in the statement of claim and the defendant in the statement of defense). Of the evidence presented, the judge may accept only that which he deems admissible and necessary for the dispute. The role of the court is inquisitorial (i.e. the court is actively involved in the investigation of the facts of the case), and the judge may therefore order the parties to produce any evidence which he or she deems necessary, regardless of whether or not the parties consent to such disclosure.

The parties must each produce all evidence in support of their claim. If important documents are not disclosed by the opposing party, or they are held by a third party, the court may (on its own initiative or at the request of a party) order the respective party to disclose them. If the parties refuse to disclose such documents, or if it is proved that they have concealed such documents, the court may consider the affirmations of the interested parties concerning such documents as being proved. If the evidence has a special legal regime (state secrets, trade and business secrets, professional secrets etc.), then it can be submitted in a confidential form for the other party and be fully disclosed only to the judge.

After the judge approves the evidence presented by the parties in their written submissions, the parties may agree to conduct a separate evidence production process whereby each party presents the evidence that it considers necessary to determine the litigation. The court supervises the process by resolving any objections, incidents or additional requests that arise raised during the production of evidence. This procedure is a faster alternative to produce evidence, although, in practice, it is rarely used.

In Russia, there is no extensive disclosure more typical of common law jurisdictions. Although parties must substantiate their statements with evidence, the parties are free to determine which evidence they would like to use.

The proceedings do not include court-ordered disclosure or discovery as a separate stage. Nonetheless, courts may request additional documents from the parties to the proceedings or third parties. If a party to litigation is unable to obtain the necessary evidence, it may ask the court to order the provision of evidence by another party or third parties (e.g. state authorities, banks, etc.). However, fishing expeditions are not allowed and the requesting party should indicate the following in its application: what specific evidence it seeks; the location of the evidence; relevance to the dispute; and why it cannot obtain such evidence.

State commercial courts favor documentary evidence. While witnesses of fact are admissible, they are rarely used. The parties may provide the court with reports of expert witnesses or ask the court for a court-appointed expert to conduct their expert review.

Disclosure and discovery in Saudi Arabia is more akin to other civil law jurisdictions, and therefore differs from the approach taken in Anglo-Saxon jurisdictions. Sharia law requires the claimant to prove their claim rather than obliging the defendant to disclose or build evidence. A judge may ask either party to disclose documents, but this request is not in the form of an order that implicates penalties in case of non-cooperation.

The claimant may submit any form of evidence. However, evidence under Sharia law is divided into different categories and levels. The judge has the right to decide whether disclosure or evidence will be accepted or not.

The court will usually give directions at the case conference for the parties to exchange a list of and copies of the following documents in their possession or control within 14 days from the date of the case conference, except for privileged documents and documents where publication would not be in the public interest:

• All documents that the party will be relying on; and
• All known adverse documents, which include documents which a party ought reasonably to know are adverse to its case. In other words, the obligation to produce documents is not limited to the production of adverse documents of which a party is actually aware. It also includes the production of adverse documents that the party could have knowledge about through reasonable checks and searches.

As the disclosure obligation is a continuing one, if a party comes into possession or control of a new relevant document after general discovery directions have been complied with, that party is under an obligation to produce the new relevant document within 14 days of coming into possession or control of it.

A party may apply for the production of specific documents or categories of documents in a party’s possession or control. The court will order production of the requested documents only if the requesting party properly identifies the requested documents and the proves that the requested documents are material to the issues in the case. However, the court will not order production of:

• documents that merely lead to other relevant documents (i.e. documents, which are not relevant in themselves, would reveal relevant documents), except in a special case;
• a party’s private or internal or internal correspondence, unless such correspondence is known to be adverse to that party, or in a special case; and

• subject to any written law, documents subject to any privilege or where production would be contrary to the public interest.

Parties may agree between themselves to produce and exchange documents falling within a broader scope. Likewise, the court may allow a broader scope of production of documents where it determines that it is in the interests of justice to do so.

A party may also apply to court to obtain discovery before the commencement of proceedings or against a third-party to identify possible other adverse parties to the proceedings, to enable a party to trace the party’s property or for any other lawful purpose, in the interests of justice. A third-party will be entitled to all reasonable costs arising out of such an application.

Parties to the dispute must adduce evidence in support of their claims, but each party is (subject to the below) responsible for the evidence provided to the court. Furthermore, the court decides which of the proposed evidence it will consider. In the Slovak Republic, any material that can contribute to the proper clarification of the case and that has been obtained in a lawful manner may be adduced as evidence. The most common means of adducing evidence are: examining a party, examining a witness, adducing a document, adducing an expert statement and adducing expert evidence. It should be added, however, that no evidence has prescribed legal force. The court evaluates the evidence in a discretionary manner, considering each piece of evidence separately and in relation to each other.

The court has two powers in relation to evidence. The first is the duty of redaction: any person that has material necessary to establish a fact (such as a matter relevant to the proceedings) must submit it to the court. The second is the duty of information: parties must notify the court in writing of facts relevant to the proceedings and the court’s decision. However, persons bound by the obligation of confidentiality are exempt from that obligation.

Slovak law does not govern the procedure of discovery, meaning that the filing of a discovery claim may not be executed in the Slovak jurisdiction.

Evidence may be obtained by the court itself. The court may, even without request, take evidence derived from public registers and lists if these contradict a party’s factual allegations; however, the court must not obtain other evidence without the request of parties. The court may, even without such request, obtain evidence to determine whether its procedural directions have been complied with, whether the proposed decision will be enforceable, and to determine issues of foreign law. In a consumer, anti-discrimination or individual labour dispute, the court may also obtain evidence that the plaintiff has not proposed to adduce if deemed necessary to decide the case.

The court may order anyone to provide evidence that is necessary to establish the facts of the case. In certain cases, a party is not obligated or is prohibited to present evidence. For example, a witness may refuse to testify if, by testifying, he would create a danger of instigating criminal prosecution against himself (or against persons close to him) or if, by testifying, he would violate the confidentiality of a confession or information entrusted to him in a pastoral capacity. Relatedly, a witness must maintain the confidentiality of information protected under a special regulation and any other duty of confidentiality established by law or recognized by the state. Where a witness believes themselves to be prohibited from testifying, they must give notice as soon as they become aware of such prohibition. However, the existence of the prohibition must be proved and the court will ultimately decide whether such a prohibition applies. The above also applies mutatis mutandis where evidence is given otherwise than by questioning and in cases of inspection as well.

A party is entitled to be informed of all the documentary evidence the opposing party intends to use at trial. Discovery of documentary evidence enables all parties to properly prepare for the trial. All documentation relevant to issues in dispute, whether in support or opposition of a party’s case, must be disclosed in the discovery process, with the exception of without prejudice and legally privileged communications.

A court can compel a party to submit further or better discovery of documents on application by the opposing party. Parties must request documents with sufficient particularity; proverbial fishing expeditions are prohibited and considered an abuse of process.

There is no general entitlement to pre-action discovery. Discovery claims are filed after the commencement of proceedings. Even a request for information under the Promotion of Access to Information Act 2000 may be refused if it amounts to pre-action discovery.

All forms of discovery are conducted by and are under the direct supervision of the court. In other words, a party cannot directly ask the other party to produce documents or witnesses. All requests for discovery must be made to the court and must be approved by the court. The scope of discovery in South Korea is limited compared to discovery in some common law jurisdictions.

When the counterparty possesses relevant documents, the requesting party may request the court to issue a document production order. The request to the court must clearly identify:

• the document requested;
• contents of the requested document;
• identity of the document holder;
• facts to be proved by the document; and
• the grounds for requesting a document production order.

If the court issues a document production order, the document holder must submit the requested document to the court absent of any justifiable reason such as a privilege. The court has discretion to review any document withheld from production in private and decide whether it should be produced. If the document holder fails to comply with the court’s order without any justifiable reason, the court may accept the allegations of the other party as to the content of the document.

If a third party is in possession of relevant evidence, the court may issue a document production order against the third party. However, before determining whether to issue the order, the court must question the third party. For example, asking the third party to confirm whether it has possession of the requested documents and where they are stored. If the third party fails to comply with the court’s document production order, the third party may be subject to an administrative fine.

In addition to document production orders, a party may request the court to issue a clarification order against the counterparty on factual or legal issues. The requested party is obliged to respond and submit supporting evidence, if any.

In Spain, parties substantiate their claims with evidence of their choosing. Judges are likely to reject a party's request for general, non-specific discovery. However, a party may request the judge to order (or the court of its own volition may order) the opposing party to submit certain documents or produce evidence. The submission of documents can only be requested during the legal proceedings. The procedure, if ordered by the court, is expressly not intended to facilitate fishing expeditions. The party requesting disclosure should have a legitimate interest in such disclosure and the request should cover a narrowly defined scope of documents.

It is also possible for the court, at its own discretion, to give an interim judgment asking the party to submit certain additional evidence which the court considers essential for the case.

In Sweden, the parties must present evidence to substantiate their claims but are free to determine which evidence they want to rely on. Practically everything is admissible and will be evaluated freely by the court, which will also decide the weight to give to each piece of evidence. The court will typically make no investigations of its own or assess evidence other than that which the parties have presented.

It is possible to request documents to be produced by the other party or third parties, but fishing expeditions are not permitted. The requesting party should identify the specific documents – or a narrowly defined category of documents – it is seeking and it must have a legitimate interest in seeking them. Furthermore, the applicant must show that the requested documents are relevant to the matter in dispute. The request is not limited to hard copy documents and can entail any (electronic) device holding information. After hearing the opposing party, the court will decide on the request. Attorneys and certain other professionals may refuse disclosure on the grounds of protecting legal professional privilege, and documents containing trade secrets may also be exempt from being disclosed. The court may only order a party to produce documents when they are requested by the other party, and thus a document production order cannot emanate from the court’s discretion.

There is no discovery or disclosure process in a Thai Civil proceeding. However, if one of the parties is aware of a specific document that the opposing party has in its possession that is relevant to the proceedings, it can apply for and obtain a subpoena from the court for that specific document.

The onus is on the party applying for the document request, to show that the specific document is relevant to the issue in dispute. The court will often require the applicant to provide the title and subject matter of the document and its date of issue.

The court may also order a party to adduce a specific document at its discretion.

Subject to some very narrow exceptions, each party to civil litigation in England and Wales will have to give disclosure to the other parties. The rationale behind this is that, in order for justice to be done between opposing parties, all relevant material must be out in the open. Privileged documents must be disclosed (i.e. stated to exist or have existed) but other parties do not have a right to inspect them.

From 1 January 2019, new disclosure rules are being applied to existing and new proceedings in the Business and Property Courts in London, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle for a period of two years (although certain proceedings such as competition claims and claims within the Intellectual Property and Enterprise Court fall outside the scope of the new rules).

The new rules envisage a more bespoke approach to disclosure, tailored to fit the specific needs of the individual case, with much of the work involved in data mapping being carried out in the run-up to the case management conference, and set out in a document called the Disclosure Review Document. There are express obligations (referred to as the Disclosure Duties) upon the parties and their legal representatives in relation to the preservation of documents and compliance with any order for disclosure as well as specific provisions of the rules.

Generally, when parties serve their statements of case they will be required to provide Initial Disclosure to the other parties by providing them with copies of key documents. Depending upon the nature of the dispute, the parties may regard this as sufficient. In more complex matters, there is the option for the parties to request Extended Disclosure by choosing a model for disclosure from a range of graduated options, including:

• Model A: Disclosure confined to known adverse documents (no search required);
• Model B: Limited disclosure (no search required);
• Model C: Request-led, search-based disclosure;
• Model D: Narrow, search-based disclosure, with or without Narrative Documents; and
• Model E: Wide search-based disclosure.

Any order for Extended Disclosure (if any) will be made at the case-management conference and a party must comply within the time ordered by serving various forms and lists and producing the documents over which no claim is made to withhold production.

The provisions of Part 31 of the CPR continue to apply to cases that fall outside the scope of the new disclosure rules. The concept of standard disclosure requires the parties to disclose the existence of all documents which are, or have been, in their control and on which they rely in support of their case as well as those which adversely affect their own case, adversely affect another party's case or support another party's case (together with any documents required to be disclosed by a relevant practice direction). In many commercial cases, the court is able to select an appropriate type of disclosure from a broader menu of options (which include disclosure on an issue by issue basis). In practice, the parties will often seek to agree between themselves a workable approach to disclosure, including their plans for handling disclosure of electronic documents, and then seek the court's approval.

Under both sets of rules, the disclosure order is usually made at the case management conference, after the close of pleadings, when the points of dispute between the parties have crystallized. In certain circumstances, pre-action disclosure, or disclosure at a different stage, may also be ordered.

There is no obligatory disclosure of documents in court proceedings in Scotland. Litigants need only disclose documents that they seek to rely on to prove their case. The court also has the discretion to order a party to submit certain additional evidence.

Parties seeking further documents held by the other side or by any third party must apply to the court for a disclosure order specifying the document or category of documents that they require. The order will only be granted if the documents specified are relevant to the case. Legal professional privilege can be claimed by a client to avoid disclosure of documents. Furthermore requests for disclosure that amount to fishing for evidence are not permitted.

A party contemplating litigation in Scotland may want to see, or at least preserve, relevant information that will be of assistance in pursuing a claim before commencing proceedings. A statutory procedure exists to apply for disclosure of documentation before proceedings are commenced. In order to obtain such material, an applicant must satisfy the court that it has a prima facie case, proceedings are likely to be commenced, and the documents that are pursued will assist in further specifying or detailing the pleadings.

It is possible to obtain an order for recovery of documents and/or property without the knowledge of the party holding the material – often by way of undertaking a dawn raid – where there is a risk that prior warning would cause documents or property to be destroyed or amended, raising concerns as to whether recovery could be made.

In the DIFC courts, each party is required to submit to the other parties:

• all documents available to it on which it relies, including public documents and those in the public domain, except for any documents that have already been submitted by another party (but not documents which adversely affect its case or support another party's); and
• the documents which it is required to produce by any DIFC court rule.

The default position under the ADGM court rules is similar in that parties must give to all other parties standard disclosure, which includes all the documents on which a party will rely upon at trial, except for documents that have already been submitted by another party (but not documents which adversely affect its case or support another party's). This default position can vary depending on the type of proceedings, the agreement of the parties or direction from the court.

After the initial stages, the parties are then given the opportunity to provide Requests to Produce Documents to their opponent (in the DIFC) or to make an application for specific disclosure to the court (in the ADGM), in which they are required to precisely identify the documents requested and explain (among other things) why they are relevant and material to the outcome of the case (DIFC), or would assist the fair and efficient trial of the proceedings (ADGM).

In circumstances where production of documents is disputed, in both the DIFC and ADGM, applications can be made to the court to rule on whether such production should take place. The court will usually be guided by whether the document in question is relevant to the issues in dispute (and meets other requirements, such as existence and proportionality of the request). The court will then issue orders for production.

The DIFC court rules allow a DIFC court to, at any time, request a party to produce to the court and to the other parties any documents that the court considers to be relevant and material to the outcome of the case on the court's own initiative. A similar rule does not appear in the ADGM court rules. That said, an ADGM court could make such an order based on its general management powers which allows an ADGM court to make any order, give any direction or take any step it considers appropriate for the purpose of managing the proceedings and furthering the overriding objective of the ADGM court rules.

In addition, both the DIFC and ADGM court rules allow for disclosure to be ordered against non-parties to proceedings where the court is convinced that:

• the disclosure produced as a result of the order is likely to support the applicant's case, or adversely affect the case of one of the other parties to the proceedings; and
• the disclosure is necessary in order to dispose fairly of the claim.

Civil discovery tools are similar across federal and state courts in the United States. Discovery is broad in scope and designed to allow parties to a lawsuit to obtain virtually all of the information related to any claim or defense in the litigation from each other and third parties. It is not necessary that the requested information be admissible at trial (though there are limited exceptions for certain privileged information, such as communications between a party and its attorney, and requests that are deemed unduly burdensome). As a result, the scope of discovery is significantly broader than the scope of evidence that may ultimately be presented at trial. The court is not typically involved in the discovery process but may be asked to resolve a discovery dispute between the parties.

Discovery typically consists of a combination of the following

• Initial disclosures: Parties are usually required to exchange certain fundamental information early in the case without a request from the other side. Such disclosures include a list of key witnesses, relevant documents, damage calculations, and identification of any insurance available to cover any part of a party’s liability;
• Requests for production: Parties may serve requests for production of another party’s documents, records, emails, electronically stored information (referred to as “ESI”), and other data related to the case. This is often a costly process in complex litigation, particularly when there are a large number of electronic documents, in part because the producing party and the requesting party each generally seek to review all of the documents at issue;
• Requests for inspection: If particular premises in one party’s control are relevant to the case, any other party may request to inspect those premises. For example, such requests might be used to obtain access to a manufacturing plant where an allegedly defective product was manufactured;
• Interrogatories: Parties may serve written questions, to which the other party is required to provide written responses verified under oath;  
• Physical and mental examinations: If a party claims a physical or mental injury as the basis for a claim, other parties may request that the individual submits to examination by an independently retained physician or another medical practitioner;
• Requests for admission: Parties may serve requests asking another party to admit certain specified facts contained in the request;
• Expert reports: A party may retain an expert witness—a person who has specialized knowledge of a particular field and who can use this expertise to help the judge or jury understand complex issues (for example, the science underlying a medical procedure or the appropriate definition of a product market). If a party retains an expert witness, that witness must prepare a report summarizing the expert’s opinions and conclusions, which must be provided to all other parties;
• Depositions on written questions: An individual may be placed under oath outside the presence of a judge for the purpose of responding orally to written questions prepared by one of the parties; and
• Depositions on oral examination: An individual may be placed under oath outside the presence of a judge for the purpose of responding to questions posed by an adversary’s attorney. Most attorneys prefer depositions on oral examination to those on written questions, as the latter do not provide the ability for counsel to ask follow-up questions of a witness and do give a witness time to reflect and revise what might otherwise be more candid testimony. Depositions may be taken of witnesses of fact and, in many jurisdictions, of expert witnesses. Corporate parties can be compelled to produce a designated individual with authority to respond to questions on the corporation’s behalf.

Discovery may also be obtained from third parties. However, such discovery is typically limited to production of documents, inspection of premises, and depositions, and to information that cannot be obtained from any of the parties to the litigation.

As noted above, discovery in the United States is often very broad. Nevertheless, any party may seek entry of a protective order to limit the scope of discovery to ensure that it remains proportionate to the complexity and significance of the case, or to preclude discovery that would impose an undue burden on the party or violate some privilege recognized by the law.