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Discovery and the Role of the Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017 (1998)


Wide-ranging pretrial discovery is an integral part of contemporary
American civil litigation, particularly in cases involving substantial
stakes. Pretrial discovery, strictly defined, is entirely unavailable in
civil law jurisdictions. Procedures functionally similar to pretrial discovery
are available in civil law systems, and American parties to transnational
civil litigation sometimes attempt to use those civil law
procedures. However, the experience is often frustrating for American
lawyers because the civil law judges are not readily receptive to
these endeavors. Indeed; the American endeavors in discovery from
foreign sources often are deeply disturbing to the bench, bar, and
governmental authorities abroad, and engender hostility to these endeavors.

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