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Vanderbilt Law Review

Graham Hughes

First Page

573

Abstract

Litigation depends on information. In the last few decades, discovery in civil cases has been dramatically extended in order to move toward a position in which litigants' files are open to other parties with very few restrictions.' This movement in civil cases has been relatively smooth, for its merits in terms of economy and efficiency can be fortified by pointing to its even-handed mutuality and reciprocity. In criminal cases, by contrast, courts at one time thought that any considerable expansion in discovery must be rejected because the constraints of the Fifth Amendment's self-incrimination clause would bar the exercise of compulsion against the defendant,' while the unilateral imposition of greater discovery duties on the government would upset the adversarial equipoise. A narrower understanding of the protections afforded by the Fifth Amendment has dulled this objection, and discovery in criminal cases consequently has been substantially broadened. The scope of civil discovery remains considerably wider than discovery in criminal cases, but the gap has been narrowed.'

Discovery is the acquisition of information by one party from another after an issue has been joined in litigation. Discovery rules govern the flow of information between parties formally defined as adversaries and represented by counsel. But access to information is also vital in pre-litigation settings. In the criminal context, the government may suspect that a crime has been or continues to be committed; outside the criminal area, government may suspect that regulations are being violated in a way that could lead to a civil penalty or some other administrative sanction. Or government simply may wish to probe a regulated activity in order to review the propriety of operations in that area. What powers should government have to investigate a suspicion or merely to probe at random before litigation is launched or an administrative sanction imposed? Is there or should there be a counterpart in this context to the civil-criminal dichotomy that has long dominated and still influences the discovery process?

- If the initial scent is a criminal one, government may follow two classical paths. The first possibility, procuring a search warrant, is restricted by the Fourth Amendment's requirement of showing probable cause before a magistrate. A search warrant thus is unsuitable in cases of mere suspicion. Furthermore, by its nature, a warrant is confined to the seizure of goods, effects, and papers and cannot be used to compel testimony. In addition, a search warrant may seem too harsh and intrusive a means of obtaining information from third parties (not themselves targets of the investigation) who may be willing to surrender documents or objects on demand.

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