This post was co-authored by Barbara Bavis and Robert Brammer, Legal Reference Specialists.
We receive a wide array of questions here at the Law Library of Congress—from detailed foreign legal research, to tracing U.S. federal legislation, and everything in between—but one area of legal research on which we consistently receive requests for assistance is the U.S. legal process. Specifically, researchers (including pro se litigants, or those who choose to act as their own legal counsel) have many questions regarding court procedure, and the laws, rules, and conventions that dictate how litigants should proceed during a court case.
Today, we would like to focus on one area of court procedure—the discovery process. In short, the discovery process is a method by which opposing parties in a court proceeding learn more about certain witnesses and evidence that will be presented at an upcoming trial. While information learned during the discovery process can be extremely helpful for litigants while they prepare their cases, it can be difficult for those unfamiliar with the discovery process to not only prepare discovery motions, but also to respond to opposing counsel’s discovery motions appropriately. Thus, we have prepared this Beginner’s Guide in order to help litigants from all walks of life become more comfortable with the discovery process.
Treatises are a great way to begin your research on the discovery process. Treatises synthesize court rules, statutes, and case law into a helpful overview that is supported by citations to primary authority. Below, please see the lists of treatises we have compiled on a variety of topics related to discovery to assist you with your research:
For True Beginners
- Pretrial Litigation in a Nutshell, by R. Lawrence Dessem
- Nolo’s Deposition Handbook, by Paul Bergman and Albert J. Moore
- Depositions in a Nutshell, by Albert J. Moore, et al.
- Chasing Paper: The Keys to Learning About and Loving Discovery, by Janet S. Kole
- Written and Electronic Discovery: Theory and Practice, by John Hardin Young, Terri A. Zall, and Alan F. Blakley
- Discovery Practice, by Roger S. Haydock and David F. Herr
- Pretrial, by Thomas A. Mauet
- Fundamental Pretrial Advocacy: A Strategic Guide to Effective Litigation, by Charles H. Rose III and James M. Underwood
- The Pretrial Process, by James Alexander Tanford and Layne S. Keele
- Fundamentals of Litigation Practice, by David F. Herr, Roger S. Haydock, and Jeffery W. Stempel
- Handbook of Federal Civil Discovery and Disclosure, by Jay E. Grenig and Jeffrey S. Kinsler
- Discovery Proceedings in Federal Court
- Electronic Discovery: Law and Practice, by Adam I. Cohen, David J. Lender, and G. Edward Kalbaugh
- Arkfeld on Electronic Discovery and Evidence, by Michael R. Arkfeld
- Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy and Tactics, by Michael R. Arkfeld
- Ethics in E-discovery: Leading Lawyers on Navigating Rules and Regulations and Effectively Handling Privacy Issues in the E-discovery Process
- Matthew Bender Pattern Discovery Series, by Douglas Danner and Larry L. Varn
- Medical Malpractice: Checklists and Discovery, by Douglas Danner, Larry L. Varn, and Susan J. Mathias
- The Real Estate Litigation Handbook, by David A. Soley
- Pretrial Motions in Criminal Prosecutions, by James A. Adams and Daniel D. Blinka
Forms, Drafting, and Checklists
- Bender’s Forms of Discovery (formerly Bender’s Forms of Interrogatories)
- Lane’s Goldstein Litigation Forms, by Fred Lane
- Trial Practice Checklists 2d, by Douglas Danner and John W. Toothman
- Pattern Deposition Checklists, by Douglas Danner and Larry L. Varn
If you are unable to visit us at the Law Library of Congress, we suggest finding these resources in a library near you by using the WorldCat catalog. When you select a resource from your search results list in WorldCat, scroll down to the “Find a copy in my library” section, enter your zip code (or city and country, for those not in the United States), and WorldCat will list the closest libraries to you that own that resource. You can then click on the library’s name to be taken to the resource’s entry in that library’s catalog.
Often, the general scope and method of collecting each type of discovery request is prescribed by court rules. The current editions of the Federal Rules of Civil Procedure and of Criminal Procedure can be found both in print and on the U.S. Courts website. To search for state court rules, we suggest doing a subject search in either our catalog or in WorldCat, for “Court Rules–[State],” where [State] is the name of the state in which you are interested.
In addition to the paper-based treatises listed above, there are several online resources that provide information about discovery in civil and criminal actions, including general overviews of the discovery process, explanations of the different discovery methods, and guidance regarding discovery strategies, among many others. We have listed several below for your review:
- American Bar Association
- Cornell Legal Information Institute
- “Formal Discovery: Gathering Evidence for Your Lawsuit,” by NOLO
- “Chapter 8: Obtaining Information To Prepare Your Case: The Process of Discovery,” in A Jailhouse Lawyer’s Manual, 8th Edition, by the Columbia Human Rights Law Review
- “How Civil Lawsuits Work: Before the Trial,” by Carl Vinson Institute of Government, University of Georgia
If you are interested in the discovery process in your state’s court system, we suggest reviewing your state court’s website to see if it has any discovery forms or additional guidance for state court litigants.
As always, we hope this, and the other Beginner’s Guides, are helpful to you. If you have any follow-up research questions, please do not hesitate to use our Ask a Librarian service.
Are there any other helpful sources regarding pre-trial discovery you would like to add? Please let us know in the comments!