Last updateTue, 24 Feb 2015 5pm

DISCLOSURE: Differential discovery

04 December 2015  

Teresa Rosen Peacocke investigates whether recent rule changes make US discovery more limited than UK disclosure

Civil litigation procedure has in some important respects developed differently in the US and the UK. One of the principal differences has been the availability in the US of expansive and seemingly unlimited discovery. However, this may soon no longer be the case. In fact, there is a possibility that disclosure in the UK will become (potentially) more expansive than discovery under US courts. This is due to the fact that amendments to the Federal Rules of Civil Procedure (FRCP), coming into effect in the US on 1 December 2015, will eliminate the discoverability of material ‘reasonably calculated to lead to the discovery of admissible evidence’, whereas the UK equivalent of this test – the Peruvian Guano test – is still provided for in certain specific circumstances in UK litigation.

Additional Info

  • Case(s) Referenced:

    Compagnie Financière du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

    Digicel (St Lucia) Ltd & ors v Cable & Wireless plc & ors [2008] EWHC 2522 (Ch)

    Nichia Corporation v Argos Ltd [2007] EWCA Civ 741