What the Essence of “Discovery” Reveals About its Practice, Part 1

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“Philosopher: We have hitherto spoken of laws without considering anything of the nature and essence of a law; and now unless we define the word law, we can go no farther without ambiguity, and fallacy, which will be but loss of time; whereas, on the contrary, the Agreement upon our words will enlighten all we have to say hereafter.

Lawyer: I do not remember the definition of law in any Statute.”

— Thomas Hobbes

Claims about the essence or nature of certain concepts inevitably threaten to bog one down in what seems like a mere verbal dispute. What is the essence or nature of law? What is the essence or nature of justice? On the surface, these questions do not appear to reduce to a right or wrong answer, making the questions appear trivial or non-substantive—law or justice by any other name would function just the same.

Conceptual questions tell us much about social practices. When John Austin posited that law is a command by a sovereign backed by a sanction, he understood this definition to be a description of a social practice. Likewise, when Saint Thomas Aquinas and, in a more elusive manner, Lon Fuller posited that whatever law is it must satisfy certain moral principles, they were describing what they considered socially acceptable practices. Even with Hobbes’ quote above, the Lawyer’s response to the Philosopher implies a social practice of lawmaking that reduces to statutes.

There is a risk, however, in confusing the practice with the concept for all purposes. That is, social practices tend to change, sometimes gradually, sometimes swiftly. If a certain practice changes, does the concept remain the same? What, in other words, is the fixed structure of the concept such that it can inform our understanding of social practices, and not only the other way around? If we can ascertain or agree to a fixed structure of the concept itself, then the concept will aid our understanding of contingent social practices (as the Philosopher argues in the Hobbes’ quote above).

Analytical debates abound in trying to articulate the essence or nature of “Law,” “Justice,” and even “Democracy” and “Rule of Law”—the latter two of which appear to raise an issue of disambiguating the concepts. We take these concepts seriously because the stakes may be high if we get them wrong, and we wish to get the concept right to instantiate the best possible example of these concepts through our social practices.  

I submit that getting “Discovery” conceptually right is equally important. Fortunately, unlike law or justice, discovery for our purposes does not have a life independent of litigation. Thus, our inquiry will be less esoteric than inquiries into the nature of law or justice. 

What is “Discovery”?

I’m not going on a limb to suggest that most practitioners do not consider what the essence or nature of “Discovery” is. Like the Texas Rules of Civil Procedure, most, if not all, practitioners view and describe discovery through the lens of its practice. The Texas Rules of Civil Procedure set forth a definition of “Written Discovery”: “Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.” Tex. R. Civ. P. 192.7. Notably, this definition summarizes the “Forms of Discovery.” See Tex. R. Civ. P. 192.1. Surely, Discovery must have meaning independent of its tools.

It is tempting to point to the “Scope of Discovery” as revealing Discovery’s conceptual essence or nature, but the scope of discovery tells us only how far practitioners may wield discovery tools, i.e., the “Forms of Discovery.” See Tex. R. Civ. P. 192.3. Undoubtedly, the proper use and reach of discovery tools reveals something of Discovery’s essence or nature, but Discovery must have some meaning independent of how far its tools may reach.

Black’s Law Dictionary provides a few useful definitions for “Discovery”:

1. The act or process of finding or learning something that was previously unknown.
2. Compulsory disclosure, at a party’s request, of information that relates to the litigation.
3. The facts or documents disclosed.
4. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.

Black’s Law Dictionary 498 (8th ed. 2004). The first definition in this list goes to the general understanding, both lay and legal, of Discovery. The next three definitions pertain to the legal understanding of Discovery, and each such definition speaks to a process of compulsion and revelation.

At least one court in Texas has articulated its understanding of the nature of Discovery: “The nature and purpose of the discovery process is the administration of justice by allowing the parties to obtain the fullest knowledge of the issues and facts prior to trial.” In re Kimberly-Clark Corp., 228 S.W.3d 480, 490 (Tex. App.—Dallas 2007, orig. proceeding) (emphasis added). The court describes Discovery as a process-oriented legal concept. Looking back to the last three definitions of Discovery in Black’s Law Dictionary, you will see that the court’s definition tracks the understanding of Discovery in terms of compulsion and revelation. The administration of justice, after all, means “the state’s application of the sanction of force to the rule of right.” See Black’s Law Dictionary 47 (8th ed. 2004).

We can posit from In re Kimberly-Clark Corp., and from the "Forms of Discovery" and the "Scope of Discovery," that Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed. This definition may strike some as obvious; less obvious, perhaps, is the value of not only fully articulating such a definition, but also in employing analytical reason to uncover Discovery's meaning. We are one step closer to understanding the nature or essence of discovery, which will dramatically aid and improve our discovery practice. 

But, this definition alone does not fully capture the In re Kimberly-Clark Corp.  court’s description. The court described the nature of Discovery not merely in terms of process, but also purpose. Indeed, the “administration of justice,” with its focus on “rule of right,” contains a normative component that we must unpack to fully understand the nature of Discovery.

Normative inquiries demand exacting attention to detail. To make the best attempt at getting the conclusion right, or just reaching the best conclusion possible, the discussion pertaining to Discovery’s normative grounds must be the subject of another blog.