12 - Rediscovering the Equitable Origins of Discovery

Summary

The discovery of documents is a key stage of litigation which today often takes over litigation and produces expense and injustice. Yet discovery originated as a discretionary remedy of equity courts. It was to allow a party to find out from an opponent facts relating to the plaintiff’s own case. When the fusion of law and equity courts began stepwise in the nineteenth century, this useful remedy was extended to common law courts. Initially, both common law and equity courts continued to treat discovery as discretionary. As fusion of the courts occurred, however, discovery was widened and considered an ‘entitlement’. This has led to the situation of today, which requires the discretionary roots of discovery to be re-found.