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Discovery
Ed Morgan*
Full text available: PDF format **
Abstract
The purpose of this article is to explore the theoretical basis for, and nature of, the discovery process in transnational litigation. In particular, the article examines the case-law interpreting 28 U.S.C. § 1782, a provision of American federal procedure authorizing the discovery of documents and the deposition of witnesses in aid of foreign litigation where the relevant documents or witnesses are located in the United States. The central doctrinal question is whether the evidence that is the subject of the US-based discovery must be `discoverable' in the jurisdiction of the litigation itself, or must only be discoverable under the typically more lenient US procedural rules. This debate over doctrine, in turn, raises a debate on the level of theory: Are civil procedure rules rooted in the jurisdiction in which they arise, or do they potentially span jurisdictions in a way which detaches them from any specific political/legal system? Moreover, why does the answer to this question vary from court to court? The article examines the parallels between an existentialist theory of personality and the operation of procedural rules, concluding that there is `no exit' from the debate over the relationship between competing jurisdictions' rules and thus no pre-determined outcome for the given doctrinal controversy.
* Associate Professor, University of Toronto, Faculty of
Law. This paper was first presented at the conference on 'Human Rights into the
21st Century' at the University of Toronto in September 1998. Many thanks to
Ron Daniels, David Kennedy, Karen Knop, Patrick Macklem, Kent Roach, Ayelet
Shachar and Alex Stein for their helpful comments. Thanks also go to Gal Dor
for her up-to-date research assistance and to Deborah Steggles and Larry
Thacker for their research assistance long ago.
** The free viewer (Acrobat Reader) for PDF file is
available at the
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This file was last modified:
Tuesday, October 14, 2003 01:22PM