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Parties litigant desire to obtain before trial all possible information relevant to the matter in issue. Obviously their opponents possess much of this information but are usually reluctant to divulge it. If the production of such information is compelled, however, this will frequently result in promptly clearing up those issues in the case concerning which there can be no bona fide controversy, thus saving time and cost both to the parties and to the state. Moreover such compulsion may tend to prevent substantial injustice to the party seeking information in the exclusive possession of his opponent. Both these results are desirable. But other considerations of equal social import render it undesirable to enable a party to find out before trial all that his adversary knows about the case. One problem is therefore to ascertain the extent to which discovery should be allowed, in order best to promote its usefulness without violating the latter considerations. The other problem is to find the machinery best adapted to obtain production of information, or documents, to the extent found desirable. This article aims to deal with these two problems and with a view to their solution attempts a sur- vey and examination of the existing statutes and decisions on the subject.
Date of Authorship for this Version
Discovery, 38 Yale L.J. 746 (1929)