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I'm struggling with the following dilemma.

Some information is not accessible without a court order, for example, some data stored in Apple / Google / Facebook servers.

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.

Ideally, I would like to obtain the data (that requires a court order to obtain) so that I'm equipped with factual evidence when going to the court.

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 main intention is to obtain factual evidence but going to court directly is too much risk, too many unknowns.



EDIT / UPDATE: From the comments:

🇬🇧 UK jurisdiction

pretty sure that discovery occurs in civil lawsuits as well,

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.

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    I'm not a lawyer, but I'm pretty sure that discovery occurs in civil lawsuits as well, not just criminal law. (At least in the US.) Dec 20, 2021 at 13:41
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    Closely related law.stackexchange.com/questions/24067/… Bottom line: usually only public officials can do that, not private litigants.
    – ohwilleke
    Dec 20, 2021 at 18:42
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    Concerning your edit: Honestly, if there was some way to compel a company to release their data to you, they'd be foolish not to think about why you might want it, and in particular to consider the possibility that you're considering legal action against them. Dec 20, 2021 at 22:35

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There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order.

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.

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.

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Discovery is the hunt for facts, including subpoenaing records from 3rd parties.

You can't use discovery without the other side knowing.

Unless you have a really good reason 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.

The only possible winner I can think of is to file a John Doe 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 "in the loop", 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 except toward the purpose of identifying the defendant, until that defendant is identified.

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Maybe there is some mechanism available..?

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.)

My situation is civil law and the main intention is to obtain factual evidence...

If you are proposing civil action as a "Litigant in Person" (i.e. without a lawyer), then you should consider reading the Civil Procedure Rules, especially Part 31 - Disclosure.*

Also worth reading is the Handbook for Litigants in Person written by the Judiciary as part of their general Advice for Litigants in Person.


*Just to clarify; the term and processes of "Discovery" no longer exist in the UK, being replaced with "Disclosure" by Lord Woolf' Reforms in 1999.

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    I used to be a litigant in person once, I was studying the law, I was studying the procedural rules - I thought I understand the matter well... What I did not understand were the subjectivity and interpretation. Perception is reality. Also the fact that no one was verifying the integrity of the evidence (something that you can watch on TV, making sure that pieces of paper are legit) Dec 20, 2021 at 17:50

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