united-kingdom evidence rules-of-evidence subpoena court-order
Obtaining information that requires a court order but before to going to the court?
<p>I'm struggling with the following dilemma.</p>
<p>Some information is not accessible without a court order, for example, some data stored in Apple / Google / Facebook servers.</p>
<p>Going to the court directly is too risky. Once the papers have been served, there are various circumstances that could prevent withdrawing / closing / resolving / settling. It happened to me in the past - both parties were in agreement, but the court did not agree on the agreement and forced yet another court hearing 4 months later.</p>
<p>Ideally, I would like to obtain the data <em>(that requires a court order to obtain)</em> so that I'm equipped with factual evidence when going to the court.</p>
<p>Maybe there is some mechanism available to humans? From reading books, my naive understanding is that in criminal law there is a pre-trial discovery, prosecutor and defender agree what evidence will be put in front of the jury. My situation is civil law and the <strong>main intention is to obtain factual evidence</strong> but going to court directly is too much risk, too many unknowns.</p>
<hr />
<hr />
<p><strong>EDIT / UPDATE:</strong> From the comments:</p>
<p>🇬🇧 UK jurisdiction</p>
<blockquote>
<p>pretty sure that discovery occurs in civil lawsuits as well,</p>
</blockquote>
<p>I would like to have the 1st mover advantage, not disclose to another party that I'm entertaining a thought of taking them to the court.</p>

<p>There are two cases to distinguish: information that the other party does not <em>want</em> to give without court order, and information that the other party <em>may not</em> give without court order. Only the former case matters, of course, since the latter by definition requires a court order.</p>
<p>So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore.</p>
<p>In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order.</p>

<p>Discovery is the hunt for facts, including subpoenaing records from 3rd parties.</p>
<h2>You can't use discovery without the other side knowing.</h2>
<p>Unless you have a <em>really good reason</em> that you can sell to a judge, like a strong fear that they are going to destroy evidence ... or you play dirty games with service, but the latter will backfire on you when they do find out.</p>
<p>The only possible winner I can think of is to file a <em>John Doe</em> lawsuit, against an unnamed defendant you can't identify, and you hope to use discovery to be able to do so.  John Doe never shows up at hearings :)  But that only works if it's credible. The judge really wants the counterparty &quot;in the loop&quot;, so they are not going to put up with a situation where it's obvious you know who the defendant is.  They may not even allow discovery <em>except</em> toward the purpose of identifying the defendant, until that defendant is identified.</p>

<p><strong>Maybe there is some mechanism available..?</strong></p>
<p>As far as I am aware, the only information that an organisation is obligated to provide is one's Personal Information following a Subject Access Request under GDPR. (I will leave it to others with a better understanding of GDPR to expand on this or correct me if I am wrong.)</p>
<p><strong>My situation is civil law and the main intention is to obtain factual evidence...</strong></p>
<p>If you are proposing civil action as  a &quot;Litigant in Person&quot; (i.e. without a lawyer), then you should consider reading the <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules" rel="noreferrer">Civil Procedure Rules</a>, especially <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31" rel="noreferrer">Part 31 - Disclosure</a>.*</p>
<p>Also worth reading is the <a href="https://www.judiciary.uk/publications/handbook-litigants-person-civil-221013/" rel="noreferrer">Handbook for Litigants in Person</a> written by the Judiciary as part of their general <a href="https://www.judiciary.uk/you-and-the-judiciary/going-to-court/advice-for-litigants-in-person/" rel="noreferrer">Advice for Litigants in Person</a>.</p>
<hr />
<p>*<em>Just to clarify; the term and processes of &quot;Discovery&quot; no longer exist in the UK, being replaced with &quot;Disclosure&quot; by <a href="https://www.cms-lawnow.com/ealerts/1999/01/the-woolf-reforms-new-rules-in-the-courts-from-26-april-1999?cc_lang=en" rel="noreferrer">Lord Woolf' Reforms</a> in 1999.</em></p>
