The purpose of the ISCL is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organisations with complimentary aims. We were established in June 2008 and are recognised by the International Academy of Comparative Law.

Thursday, October 11, 2012

Presuit Discovery in a Comparative Context

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.

Dodson, Scott, Presuit Discovery in a Comparative Context (2012). Journal of Comparative Law, Vol. 6, 2012.