The United Kingdom and United States share a common law tradition of private civil litigation in which the parties themselves investigate, develop, and present the facts necessary to resolve their dispute, under rules promulgated and enforced by the court. This stands in contrast to civil law jurisdictions, such as France and Germany, in which the judge plays the role of investigator.¹⁴ Central to the common law method of dispute resolution is the process of collecting information that may be presented as evidence in settlement negotiations or at trial. The term "discovery" is used in both the United Kingdom and the United States by practitioners to refer to this process, although the recently promulgated Civil Procedure Rules in the United Kingdom now call this process "disclosure."¹⁵ While there are significant differences in discovery rules and even the definitions of common terms, recently enacted or pending rules reforms on both sides of the Atlantic are bringing the concepts closer together.

In the United States, the process of investigating and developing facts prior to trial is governed by Rules 26 through 37 of the Federal Rules of Civil Procedure (FRCP).¹⁶ While these rules are in force only in federal courts, most of the state court systems in the United States have adopted civil procedure rules that closely track the federal rules.

The process outlined in the FRCP is driven by Rule 8, which allows "notice pleading," that is, that a litigant may commence an action by filing no more than a "pleading which sets forth a claim for relief... [consisting of] (1) a short and plain statement of the grounds upon which the court's jurisdiction depends... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgement for the relief the pleader seeks."¹⁷ Statements of specific facts are not required at the outset, necessitating a pre-trial fact-developing procedure. It commonly takes the form of depositions (formal interviews of potential witnesses, conducted under oath with counsel for all parties present),¹⁸ interrogatories (written questions served on the opposing party to ascertain the factual basis for a claim or defence),¹⁹ and requests for production (requests to produce documents or other tangible objects "relevant to the subject matter" of the dispute).²⁰ Included within the definition of "document" found at Rule 34 is language adopted in 1970, "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."²¹

In the adversarial American system, a party has no duty to come forth with information before trial unless the opposing party specifically asks for it, so much of the discovery process is spent defining the universe of potentially relevant information. The scope and timing of discovery events is largely up to the parties. While rules, local practice, and judicial management orders may set outside limits on the number of interrogatories or depositions, or set the deadline to complete discovery, judges are generally not involved in the day-to-day conduct of discovery, intervening only when one or another party objects to specific questions or requests.

Civil litigation in the courts of England and Wales is governed by the new Civil Procedure Rules (CPR),²² which have only been in force since April of 1999. Similar to Rule 8 of the FRCP, the new CPR adopt a streamlined process to initiate of actions. CPR Rule 7.2 (1) states "[p]roceedings are started when the court issues a claim form at the request of the claimant."²³ Rule 16.2(1) states that the claim form must contain "a concise statement of the nature of the claim" and "specify the remedy which the claimant seeks."²⁴ Under Rule 16.4, the form should also state the "particulars of claim," including "a concise statement of the facts on which the claimant relies."²⁵ The Practice Direction accompanying Part 16 sets out the information to be included in the particulars.²⁶ Lord Woolf envisaged the parties developing these basic facts through pre-action exchanges.²⁷ Thus, while the CPR do not go quite as far as the FRCP in adopting "notice" pleading, the resolution of most disputes still depends on a pre-trial fact-developing process.

This fact-developing process, called "disclosure," is primarily document-based and governed by CPR Part 31. Rule 31.4 defines a "document" as "anything in which information of any description is recorded."²⁸ In contrast to the American approach of waiting for a document request from the opposing party, disclosure under Part 31 is pro-active. The parties themselves, after making a "reasonable" search, determine what documents are relevant to the action and generate a statement disclosing their existence.²⁹ The opposing party then has the right to inspect and make copies of any disclosed document, unless the disclosing party states that the document is no longer is within his or her control, the document is privileged, or disclosure would be "disproportionate to the issues in the case."³⁰

As outlined above, there have been significant differences between British and American discovery practices since at least the late 1930’s.

• The scope of discovery allowed under the federal rules in the United States is considered far broader than the scope allowed in the United Kingdom. The operative language in FRCP Rule 26(b)(1) is "any matter, not privileged, which is relevant to the subject matter in the pending action…" In contrast, CPR Rule 31.6 requires disclosure of documents on which the party relies or which affect "the case."³¹
• British solicitors have a pro-active obligation to investigate, collect, organise, and disclose their clients’ relevant documents to their opponents. Their American counterparts have not, until recently, had any such obligation. Their opponents must identify and request documents.
• Discovery in the United States generally produces a higher volume of information than discovery in the United Kingdom. The combination of the broad scope and the "document request" procedure in America (as opposed to the more-focussed "disclosure" procedure) may account for this, especially in factually complex or high-stakes cases.³²
• Discovery in the United Kingdom is limited to document-based information. In the United States, depositions play an important, often primary, role in discovery. This has effectively narrowed the scope of discovery in the United Kingdom to matters that are documented.

Perhaps more significant than the actual differences are the perceptions of difference between the two cultures in regards to discovery.

• In the United States, the notion that British attorneys are under an obligation to disclose documents adverse to their client’s case is considered anathema. Attempts to implement a similar rule in the United States have met with stiff resistance, based on the view that an attorney’s primary ethical responsibility is to protect his or her client.³³
• In the United Kingdom, American-style discovery is viewed a cultural anomaly and a wasteful extravagance.³⁴ Electronic discovery is viewed as particularly obtrusive. One major UK newspaper called electronic discovery "the latest gold mine for the American legal profession" and part of "a system that allows notes between friends to become public property, meat for every litigious peeping Tom."³⁵

The actual differences between the two cultures may not be that extreme, and recent civil procedure reforms (or pending proposals) may narrow them further. Discovery in the United States is not as large an industry as the legal and popular press portray. Empirical studies show that discovery occurs in only about half of civil cases filed in United States federal courts, and that document discovery is generally not the most costly and time-consuming activity. On average, deposition discovery costs twice as much. The median cost of discovery, as a percentage of the total amount at stake, is quite small, around 3% to 5%. Most significantly, a majority of attorneys believe that discovery produces an appropriate amount of information, with only 10% on either end of the spectrum believing that discovery in their experience results in the production of either too little or too much information. The widespread perception of burdensome discovery could be derived from the minority of high-stakes, big-money cases, approximately 5% of the docket, in which discovery can exceed 30% of the total claim.³⁶

The Americans are moving closer to the British "disclosure" model of discovery. Pre-discovery disclosure was first incorporated into the FRCP in 1993,³⁷ but was made optional, allowing each of the more than 90 federal district courts to either adopt the new rule, follow the old discovery rules, or fashion their own disclosure procedure by local rule. Only one-third of the district courts chose to adopt the new FRCP Rule 26 in its entirety, but in the years that followed the experiment seemed relatively successful. On September 15, 1999, after extensive discussion and debate within its Advisory Committee on Civil Rules, the Judicial Conference of the United States voted to recommend pre-discovery disclosure uniformly across the nation, with one important modification: attorneys will have no obligation to disclose documents or other evidence adverse to their client’s case.³⁸ This recommendation must still be approved by the United States Supreme Court and ultimately by Congress.

On that same day, the Judicial Conference made another historic decision, to change the "scope" language of Rule 26 from "any matter, not privileged, which is relevant to the subject matter in the pending action…" to "any matter, not privileged, that is relevant to the claim or defence of any party."³⁹ If approved by the Supreme Court and Congress, this would bring the scope of discovery in the United States closer to that of the United Kingdom.

Both the United States and the United Kingdom have recently gone through a series of civil procedure reforms with a common theme: an increased role for judicial management as a tool to control the delay and expense of civil litigation, particularly discovery. In the United States, this has been done by amending particular rules to give judges greater power to set discovery timetables and limits.⁴⁰ In the United Kingdom, the reform was much more dramatic: an express declaration in the CPR that judges have a duty to engage in "active case management" to achieve the "overriding objective" of dealing with the matter expeditiously, fairly, and "proportionately" to the complexity of the issues and the amount at stake.⁴¹ The United Kingdom’s new CPR then go one step further, leap-frogging over the recent civil procedure reforms in the United States, by declaring that "active case management" includes "making use of technology."⁴²

These developments come at a critical juncture. The rapid spread of digitally-based information technology in international commerce, and computer-mediated communication in everyday life, mean that those legal systems that are best able to integrate computer-generated documentation into their dispute-resolution mechanisms, take full advantage of the potential time and cost savings that digital technology offers, and produce results that are viewed as just and predictable, will have an advantage. Perhaps closer to home, those court systems that are not overwhelmed by the demands of a relatively small number of high-stakes, high-profile "electronic discovery" cases will be better able to allocate precious judicial resources to meeting the everyday needs of justice.

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