Presuit Discovery in a Comparative Context
6:2 Journal of Comparative Law 51 (2012)
16 Pages Posted: 10 Oct 2012 Last revised: 3 Feb 2013
Date Written: 2012
In civil litigation around the globe, the usual process is that investigative discovery is allowed (if at all) only after the plaintiff files an initial pleading. Recently, however, a growing number of jurisdictions have adopted general mechanisms for presuit investigative discovery. This paper explores these mechanisms and probes their nature and importance. It first finds that presuit investigative discovery is surprisingly prevalent among common-law systems, despite the usual order of pleading and discovery. The paper then argues that presuit investigative discovery can provide a useful tool for enabling plaintiffs to file a sufficient complaint in fact-pleading jurisdictions. Finally, the paper suggests that the US federal system, as its pleading system moves closer to the fact-pleading regime typical of the rest of the world, ought to look to foreign mechanisms of presuit investigative discovery as a model for its own reform.
Keywords: Iqbal, pleading, comparative, CPR, presuit, pre-suit, preaction, pre-action, discovery, disclosure, common-law, procedure, Rule 27, 31.16, search order, Norwich
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