Discovery

ALL JURISDICTIONS require rules governing the ways in which evidence is obtained for the purpose of legal proceedings.

The existence of such rules is essential to ensuring that legal proceedings are conducted in a fair and transparent manner and that one party is not disadvantaged by not being able to obtain evidence that supports its case. This article examines the issues in the context of civil litigation and compares the position in common law jurisdictions with the position in mainland China.

COMMON LAW JURISDICTIONS

Common law jurisdictions are often referred to as being adversarial in nature. One of the features of an adversarial system is that the courts decide a case based solely on the evidence presented by the parties. Unlike civil law jurisdictions, which are often described as inquisitorial (or “non-adversarial”) in nature, the courts do not investigate the facts themselves or collect their own evidence.

In an adversarial system, it is the responsibility of the parties to collect evidence in support of their case before the proceedings commence and to present it to the court. How the parties obtain evidence – particularly when it is in the possession of the other party – is therefore of critical importance. The process by which a party to civil litigation may obtain evidence before a proceeding commences is commonly known as “discovery”. In the UK, the process is known as “disclosure” following reforms to civil procedure that were adopted in 1999.

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at beta2.law.asia.