Editing Tort (section)

===Discovery in tort litigation===
{{main|Discovery (law)|Tort reform#Cost of discovery}}

Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a [[lawsuit]] in which each party, through the law of [[civil procedure]], can open-endedly demand evidence from the other party or parties by means of discovery devices such as [[interrogatories]], [[Request for production|requests for production of document]]s, [[request for admissions|requests for admissions]] and [[Deposition (law)|deposition]]s. Discovery can be obtained from non-parties using [[subpoena]]s.  When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a [[motion to compel]] discovery.<ref>{{cite journal|last1=Schwarzner|first1=William W.|title=The Federal Rules, the Adversary Process, and Discovery Reform|journal=University of Pittsburgh Law Review|date=1988|volume=50|page=703|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/upitt50&div=24&id=&page=|access-date=30 September 2017}}</ref> In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant.<ref name="Burbank_Page70">{{cite book |last1=Burbank |first1=Stephen B. |last2=Farhang |first2=Sean |author-link1=Stephen B. Burbank |title=Rights and Retrenchment: The Counterrevolution Against Federal Litigation |date=2017 |publisher=Cambridge University Press |location=Cambridge |isbn=9781107136991 |page=70 |url=https://books.google.com/books?id=xs8oDwAAQBAJ&pg=PA70 |access-date=12 July 2020}}</ref> Consequently, commentators in [[Civil law (legal system)|civil law jurisdictions]] regard discovery destructive of the [[rule of law]] and as  "a private inquisition."<ref name="Maxeiner_Page 151">{{cite book |last1=Maxeiner |first1=James R. |title=Failures of American Civil Justice in International Perspective |date=2011 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139504898 |page=151 |url=https://books.google.com/books?id=Ef_Oa3qTqL4C&pg=PA151 |access-date=9 June 2020}}</ref> Civil law countries see the underlying objectives of discovery as properly [[State monopoly|monopolised by the state]] in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the [[Executive (government)|executive branch]], and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the [[Legislature|legislative branch]].<ref name="Maxeiner_Page 151" /> The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file a tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions.