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12 - Rediscovering the Equitable Origins of Discovery

The ‘Blending’ of Law and Equity Prior to Fusion

from Part II - Fusion and Fission in Doctrine and Practice

Published online by Cambridge University Press:  26 July 2019

John C. P. Goldberg
Affiliation:
Harvard Law School, Massachusetts
Henry E. Smith
Affiliation:
Harvard Law School, Massachusetts
P. G. Turner
Affiliation:
University of Cambridge
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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.

Type
Chapter
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Equity and Law
Fusion and Fission
, pp. 280 - 306
Publisher: Cambridge University Press
Print publication year: 2019

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