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What is Legal Discovery?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 11 November 2016
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    Conjecture Corporation
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Discovery, sometimes known as disclosure, is a process in legal procedure in which both parties involved in a case investigate the facts of the matter to collect supporting material which can be used in trial, and are obliged to share material with opposing counsel. The idea behind legal discovery is that a case will be presented more fairly if both sides have all of the facts, and knowing which materials the opposing side plans to use can allow a legal team to prepare so that they will not be caught unawares in court. The guidelines for this process vary between legal systems and nations.

Once a formal suit is filed, whether it is civil or criminal, legal discovery begins. Lawyers want to collect as much information as possible about the case so that they can use it in court. This information will influence the structure of the case, will help a lawyer decide how to argue, and will be used to support or undermine various theories and suggestions which will come up in the court room. For example, if someone is accused of murdering someone with an axe which requires two hands to use and the accused has nerve damage in one hand, this fact could be used to suggest that it is unlikely that the accused committed the crime.

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Legal discovery includes collecting documents, depositions from witnesses, and physical evidence. People may travel to the sites where events relevant to the case took place to document them, may hire private investigators to collect information, and can consult expert witnesses for their opinions on materials related to the case. Lawyers can also file discovery requests with opposing counsel.

A request can include an oral or written interview, a request to affirm or deny facts, a request to examine evidence relevant to the case, and an opportunity to see which witnesses the opposing counsel intends to call. People must comply with legal discovery requests unless they can demonstrate that a request pertains to information which is somehow protected. There are certain types of information which people are not obliged to turn over during discovery.

In criminal cases, the prosecution is required to turn over any material it finds which may exonerate the accused, whether or not this information would have been used in court by the prosecution. For example, if investigators find a security tape showing that someone was in a different location than the scene of the crime during the time period when the crime was committed, this must be submitted to the defense. Likewise, the defense is obliged to turn over certain kinds of information to the prosecution during legal discovery.

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