Adoption of the United States Rules of Discovery in the Civil Procedural System of Saudi Arabia

Title of Proposed Research:

The Adoption of the United States Rules of Discovery in the Civil Procedural System of Saudi Arabia

Research Question:

Can the discovery process in the United States legal system be adopted in Saudi Arabia?

Rationale:

The Saudi Arabian legal system currently suffers inefficiencies such as delayed and lengthened proceedings which waste limited judicial and party resources. These inefficiencies are caused by parties who procrastinate regarding hearings and limited formal rules, expectations, and mechanisms for obtaining and exchanging documents and other information.

Instead of stating a formal mandatory mechanism for collecting and exchanging the necessary information among parties out of court to save resources, the rules for obtaining and exchanging information in current Saudi Arabian civil procedural law emphasize the importance of attending judicial hearings and providing the relevant documents, testimonies, and all other relevant material in court before judges.[1] These legislative imperfections encourage bad faith parties to postpone revealing relevant information or evidence in their possession that is not necessarily to their advantage, and often this delays resolving the dispute.[2] One reason why this delay occurs is that the only formal method to provide and exchange information is during judicial hearings before judges.[3] As a matter of fact, parties are not required to meet to seek to resolve their dispute out of court. This is further exacerbated by the severe shortage of judges in Saudi Arabia.[4] The adoption of a formal discovery process may improve Saudi Arabian civil legal proceedings.[5]

Civil proceedings in Saudi Arabia take an exorbitant amount time to be resolved by the courts because there is not an official discovery process for obtaining and exchanging materials used by the parties in court.[6] Some proceedings may take several years in court waiting to reach a final judgment. This is especially true in family law cases.[7] The length of the proceedings may in part depend on how complex the case is, and how many parties are involved in it.[8] Nonetheless, the major cause for delay is that plaintiffs have the burden to provide all the evidence that supports their allegations when they file cases in court.[9] However, there is no inspection of the evidence to ensure that the plaintiffs provide all of the evidence, and there are no any legal penalties for failing to do so. Similarly, civil procedural law requires defendants to submit their answers and counter arguments, which support their defenses, three days prior to the first judicial hearing, but as a matter of fact, there is no penalty for failing to do so either.[10] Indeed, there are very limited legal penalties to ensure the parties’ compliance.[11] If a party discovers that related information or documents are in the possession of another party, and the party is in need of these materials to support its allegations, the only approach for the party to get these materials is a court order to compel, which may take protracted time to be granted.[12]

Indeed, from my prior professional experience as a lawyer in Saudi Arabia, I can attest to the fact that there are some lawyers who successfully hide crucial evidence and witness testimonies to delay the proceeding and sway the decision in their favor. There are currently no sanctions in Saudi Arabia for such bad faith behavior.[13]  On the other hand, the application of the discovery process in the proceedings in the United States leads most cases to be settled outside of court.[14] Sanctions on the violation the discovery process, by failing to disclose on a timely manner, are used in the United States’ civil procedural law to encourage full disclosure by all parties. The documents, testimonies, or any other information to support a party’s argument should be revealed to the other parties prior to the hearing. Therefore, the adoption of a discovery process in Saudi Arabia may save financial resources and time by finalizing the dispute before getting into the trial court, and also save the court’s resources in considering and deciding the case.[15] The current system of exchange of information during trial causes delay. By adopting pretrial discovery, the courts will provide for the exchange of information, which is particularly needed due to the shortage of judges. The adoption of the U.S. discovery process in Saudi Arabia could accelerate justice and legitimize court decisions which result from the lack of official discovery rules.

This research will engage in a comprehensive study of the discovery process in the United Sates, with an eye to evaluating the pros and cons of the United States civil procedural rules and doctrines of discovery. The aims of this study are to ascertain which discovery rules could be appropriately incorporated into Saudi Arabia’s civil procedural law and to explain the purpose of this adoption. The following is the chapter outline for my research:

Chapter I: Overview of Adopting Rules of Discovery in Saudi Arabia

1. The legal and procedural situations in Saudi Arabia in the absence of a discovery process
2. The current issues in the Saudi Arabian legal system caused by the lack of a discovery process
3. Overview of the discovery process in the United States
4. The advantages and disadvantages of enforcing the discovery process in the United States
5. Why a discovery process should be adopted in Saudi Arabia’s civil procedural system

6. The advantages and the challenges of adopting a discovery process in Saudi Arabia

Chapter I will discuss the Saudi Arabian legal and procedural situations without a discovery process, and the legal problems caused by the absence of discovery. There will then be a general overview of the federal rules of discovery in the United States together with a discussion of the advantages and disadvantages of implementing the discovery process in the American legal system. Chapter I, also, will scrutinize the intended purposes of using the discovery process in the Saudi legal system, as well as the advantages, and challenges of this adoption in order to determine if the adoption of discovery in Saudi Arabia will help solve current problems in the Saudi legal system.

Chapter II: Overview of the Status Quo of the Saudi Arabian Legal and Judicial Systems in the Absence of a Discovery Process

1.  Introduction to Islamic Law and the current legal situation in Saudi Arabia, as it pertains to the exchange of documents and information
2. Some discovery rules in the Islamic Law and the Saudi civil procedural law and how they are applied in the legal system
3. The process of disclosing the information in the current Saudi civil procedural law
4. The change and improvement or worsening in the process of submitting information and legal materials between the old and current Saudi civil procedural laws
5. The legal consequences which are caused by the absence of a discovery process
6. The current courts’ behavior in Saudi Arabia in supporting or rejecting the adoption of a discovery process

Chapter II will introduce the relevant parts of the exchange of information and documents among parties in Saudi civil procedural law and Islamic Law, some of which have semi discovery rules, and will include how these parts are applied in the Saudi legal system. Also, Chapter II will discuss the process of revealing information and the exchange of information between parties in current Saudi civil procedural law, taking into consideration the change in the process of submitting legal material in the old and new civil procedural laws in Saudi Arabia. This chapter will address the existing legal consequences due to the absence of a discovery process in Saudi Arabia. Also, there will be a review of courts’ reactions to possibly applying a discovery process in Saudi Arabia.

Chapter III: The Discovery Process in the Federal Rules of Civil Procedure in the United States and Its Applications

1.  Overview of the discovery rules in the Federal Rules of Civil Procedure
2. Overview of the stages and the types of E-discovery process
3. How to discover the Electronically Stored Information, and what the discoverable material under E-discovery process are
4. The limits, scopes, and purposes of E-discovery process
5. The advantages of applying the discovery process in terms of time and cost
6.  The benefits of the sanctions and the legal consequences of violating the discovery rules
7.  The disadvantages of applying the discovery process in the United States
8. Arguments for and against the discovery application in the United States

Chapter III will be an overview of the discovery process in the Federal Rules of Civil Procedure including the types and the stages of E-discovery. This chapter will examine the legal methods to discover Electronically Stored Information, including the limits, scope and purposes of E-discovery in addition to examining the discoverable legal materials under the process of E-discovery. Further, Chapter III will discuss the advantages and benefits, in terms of time and cost, and the disadvantages of applying the discovery process in the United States. This chapter will present some perspectives as well on the advantages and disadvantages of applying discovery in the United States.

Chapter IV: The American Special Discovery Rules Which Should Be included in Saudi Arabian Civil Procedural Law

1. Why a discovery process should be included in the civil procedural law of Saudi Arabia, and what the advantages of this adoption are
2. What discovery rules from the Federal Rules of Civil Procedure should be adopted in Saudi Arabia’s legal system and why
3. Which sanctions on the violation of discovery should and should not be applied in Saudi Arabia and why
4. How the civil procedural law in Saudi Arabia will evolve after adopting a discovery process in the procedural system
5. How parties and legal authorities can benefit from adopting a discovery process in the judicial system
6. How to amend the current legal system to be appropriate for the adoption of a discovery process into the civil procedural law
7. How to activate the adoption of a discovery process in Saudi Arabia’s legal system

Chapter IV will provide more explanations of the purposes and the advantages of adopting a discovery process in the Saudi Arabian civil procedural law, and which discovery rules from the Federal Rules of Civil Procedure in the United States should or should not be included in this adoption. Also, this chapter will address the prospective evolution in the Saudi Arabian legal and judicial systems after adopting a discovery process. Chapter IV will analyze the mechanisms to amend the current Saudi civil procedural law for the adoption of a discovery process, and the mechanisms to stimulate this adoption in the legal and judicial systems.

Chapter V: The potential impediments and Challenges of Adopting a Discovery Process in Saudi Arabia

1. The potential disadvantages of adopting a discovery process on the legal system
2. The potential reactions by courts and lawyers after enforcing a discovery process in the procedural system
3. The expected procedural consequences of applying a discovery process in Saudi Arabia
4. Possible challenges of adopting a discovery process in Saudi Arabia
5. How to confront and resolve the challenges of Discovery adoption in Saudi Arabia

Chapter V will discuss the possible disadvantages of applying discovery in Saudi Arabia and the reactions by courts and parties upon the adoption of a discovery process in Saudi Arabia. This chapter will consider in detail as well the possible challenges and procedural consequences of applying the discovery process in Saudi Arabia and will analyze the best approaches to encounter and resolve these challenges and consequences.

1. Critical Literature Review (Please include a substantive review of the literature relevant to your proposed research question, including a discussion of the current state of the literature, a chapter-by-chapter discussion of the sources that will be relevant, and the overall need for your proposed research):

This research seeks to understand the discovery inefficiencies in Saudi Arabia through a comparison with the United States’ discovery process. Currently, there is no discovery process in the Saudi Arabia’s civil procedural law. Therefore, this dissertation will address this gap by analyzing U.S. civil discovery rules and their applicability to Saudi Arabia’s current legal system.

Other research has shown that the trial proceedings in Saudi Arabia are very slow, and that there is a lack of guidance on the manner and timing of presenting evidence in civil litigation. This leads to delays in achieving justice and final judgments in civil proceedings.[16] Having researched the field of Saudi Arabian civil procedure and related parts of the written Islamic Law, it was clear to me that there has not been any academic research in Saudi Arabia that explores the U.S. civil discovery process and considers its potential application to Saudi Arabia’s civil procedural law.

This dissertation will discuss the deficiencies caused by the lack of a discovery process in Saudi Arabia and develop appropriate solutions to establish a civil discovery process in Saudi Arabia in order to prompt legislative reform. This research will show how it is crucial and necessary for Saudi Arabia to adopt a discovery process in its legal procedural system to achieve more efficient resolutions of cases and enhance the criterions of litigations. This research will also explain how the adoption of a discovery process in Saudi Arabia’s procedural law would have a positive effect on resolving one of the most critical problems in the Saudi legal system: the excessive delay in achieving justice.[17] In addition, this project will lay out practical ways that the adoption of a discovery process would of prevent undue delay in the Saudi Arabian legal system. It will also address methods to prevent fraud and other malfeasance caused by some parties who act in bad faith and attempt to obtain an advantage and delay justice by hiding or deferring providing information or other legal materials which might be crucial to end the litigation before courts in favor of another party.

In general, the kingdom of Saudi Arabia adopts the civil law system. In Saudi Arabia, there are no binding precedents or a jury trial system as in the United States. The Saudi legal system is inspired by Islamic Law, but it is a mixture of Sharia laws and modern civil laws.[18] The process of making or revising laws in Saudi Arabia occurs through the Consultative Council (Shura Council) and the Council of Ministers.[19] The Council of Ministers has both executive authority and legislative authority.[20] The Consultative Council has legislative authority only.[21] In addition, there is no modern written constitution document in Saudi Arabia.[22] The major sources of legislation are Quran (The Holy Book for Muslims)[23], Sunna (Prophet Mohammed’s rules and acts)[24], Scholars’ Consensus[25], and some other constitutional documents such as the Basic Law of Governance, Council of Ministers Law, Consultative Council Law (Shura Council Law), Law of Allegiance, Judiciary Law, and Law of Regions.

In the Saudi legal system, there are two forms of courts: The General Judiciary System and the Administrative Judiciary System. Under each form, there are different types of courts. In addition to these two forms, there are Quasi-Judicial Committees, which are not considered to be courts, but committees making judicial decisions. These committees have their own procedural systems.[26]

The General Judiciary System has general jurisdiction over all cases except those that are excluded by the law.[27] There are five types of courts under this system: Criminal Courts (have a different procedural law), Commercial Courts, Family Courts, Labor Courts, and General Courts (for all other matters).[28] In general, there are two levels of litigation in this system: trial courts and appellate courts. Yet, the Supreme Court is considered as a third level of litigation only in certain cases, such as death penalty cases.[29] The Supreme Judicial Council, in this system, considers all judges’ functional matters.[30]

The second form of courts is instituted under the Administrative Judiciary System, and has jurisdiction over all administrative cases.[31] Generally, in this system, there are two levels of litigation as well the administrative courts and administrative appellate Courts. The Administrative Supreme Court is considered in this system as a third level of litigation only in certain cases such as if the objection on a ruling relates to a violation of Sharia Law.[32] In this judicial system, the Administrative Judicial Council considers all administrative judges’ functional matters.[33] This system has its own procedural law, which is the Procedure Law before the Board of Grievances.[34]

In addition to these two judiciary systems, there are Quasi-Judicial Committees which make judicial decisions.[35] Most of their decisions are final and cannot be appealed.[36] One reason for their establishment is to accelerate litigation in some matters outside courts.[37] Another reason for establishing them is the religious ground of the legal system in Saudi Arabia. Some of these committees may make judicial decisions for interest, which are forbidden in Islamic Law, and these decisions cannot be revoked.[38] The members of these committees are considered legal specialists. They do not enjoy the privileges of judges.[39] Examples of these committees are the Banking Committees, the Insurance Committees, and the Customs Committees.

Following this brief introduction to the entire Saudi judicial system, there will be an overview of the Saudi Arabian civil procedural law. As an introduction to the current system of exchanging information in the Saudi Arabian civil procedural law, the Saudi civil procedural law explains part of the initial disclosure that should be done by plaintiffs at the time of filing cases, but does not mention such a disclosure from the defendants which they should conduct before or during trial.[40] In the current civil procedural law in Saudi Arabia, generally defendants must submit their answers to plaintiffs’ allegations no later than three days prior to the first judicial hearing, and one day prior to the first hearing in certain other cases. There are no, however, legal penalties on defendants for not doing so.[41] Also, if a court decides that a party’s lawyer is acting in a way considered as undue extending of the judicial hearings, the court may order the client of that lawyer to attend the hearing in person as a legal consequence.[42]

Indeed, parties’ advocacy in court must be done verbally, but the rules do not prevent parties from submitting and exchanging their defenses in writing. Also, courts should give parties a reasonable period of time to look at the written documents and prepare answers to the allegations.[43] Further, judges, before ordering the service of complaints to defendants, must ask plaintiffs to provide all the required documents and materials that support their cause of action and allegations; otherwise, courts must dismiss the lawsuits.[44] In fact, defendants must answer plaintiffs’ allegations during the same judicial hearing in which the allegations are raised if the judge orders them to do so. Otherwise, the judge may apply sanctions on defendants who reject answering without a valid reason.[45] In addition, during hearings, judges are the ones in charge of questioning parties, witnesses, and others about any matter in relation to the cases. If a party has any questions for another party or a witness, they can only ask the judge to direct their questions and requests.[46]

Here is an overview of interrogatories and depositions in the Saudi Arabian civil procedural law. In general, Courts may, on their own or by a motion, request an admission or interrogate any party during judicial hearings without any previous notice. Parties should obey courts’ orders on this, or they might be penalized.[47] Courts, however, may permit a party to postpone its answer to another judicial hearing, or another venue, whenever justice requires it, or the court finds it is necessary.[48] Also, if a party refuses to attend an interrogatory or refuses to answer a question, the court may extract the answer from the circumstances and may penalize that party.[49] In fact, depositions must be done only before judges, and they should be related to the case’s subject matter in order to admit them into a proceeding. Parties who conduct depositions must be qualified to do so.[50]

Further, as an introduction to performing oaths in the Saudi Arabian civil procedural law, parties who request to direct an oath to another party should specify the elements on which they want the other party to perform their oath.[51] Also, performing an oath or refusing to perform an oath is considered valid only if it occurs in a court and before a judge.[52] If there is no dispute about the subject matter of the oath, the party who is asked to perform the oath must perform immediately in the same judicial hearing or redirect the oath to the party who requested it. Otherwise, the party’s action will be considered as a refusal to perform, and the court may apply a penalty.[53] If a party from whom the oath is requested cannot come to court to perform for a valid reason, the judge must go to their venue to authenticate the performance or must authorize another judge to do so.[54]

The process of testimonies in the Saudi Arabian civil procedural law is in accordance with the following rules. As a binding rule, if a witness cannot come to court to perform their testimony for a valid reason, the judge who oversees the case must move to that witness’s venue to hear and authenticate the testimony or must authorize another judge to do so.[55] Further, if a party requests a grace period to bring their witnesses to court, the court must grant that party the shortest reasonable time limit to bring its witnesses. If the party does not bring its witnesses to the assigned judicial hearing, the party can be given another grace period to bring them in if there was a valid reason. If the party does not bring its witnesses to the second assigned judicial hearing, then the court can proceed in the case and may issue its verdict without hearing from these witnesses.[56]

Indeed, an example of discovery rules in the Saudi civil procedural law is that the court may, on their own or by a motion, bring a third party to a proceeding and force that party to submit documents or proof of evidence in its possession which is necessary for the proceeding, and may as well oblige any government agency to provide any papers or documents necessary for a proceeding.[57]

Like the branches in the United States government, the authorities in Saudi Arabia consist of three branches: The judiciary authority, the executive authority, and the regulatory authority. These authorities must cooperate with each other in the performance of their functions, and in case of any disputes, the King is the reference for these authorities.[58]

The author of A Brief Overview of the Saudi Arabian Legal System provides general information about Saudi Arabia and the history of the Saudi legal system. He mentions, as well, some constitutional documents and the three branches of authorities in Saudi Arabia. He includes a thorough discussion about the judicial branch and its sectors in Saudi Arabia.

Further, the author of The Role of Traditionalists and Modernists on the Development of the Saudi Legal System discusses the roles of these two large schools of thought and studies their backgrounds. He also considers the effects on the Saudi legal system of these two groups in terms of legislation, the judicial system, legal education and the different perspectives about the application of laws in Saudi Arabia. These two publications are going to be the main references in writing about the Islamic Law and the Saudi legal and judicial systems in Chapter I and Chapter II of this dissertation.

In Public Counsel’s Guides and Forms: Discovery, there are discussions about the principles of the discovery process in the United States. In this paper, there are some guides about the discovery process in the federal rules of civil procedure. These include guides to discovery basics, the obligations of initial discovery, requests for production and admission, and a guide to interrogatories in the United States. This paper has a particular importance in researching about the applicability and possibility of adopting a discovery process in Saudi Arabia. It provides the basics and the guidelines in applying discovery in the United States.

In Significant Changes to the Federal Rules of Civil Procedure, and in Significant New Changes to the Rules of Discovery in Federal Court, the authors discuss in detail the practical impacts of the new changes to the discovery rules in the Federal Rules of Civil Procedure (2015). They confirm that the amendments to the rules are intended to speed up litigation, minimize the costs of discovery, and to concentrate litigation to the pleas at issue. The authors provide overviews of the new changes to the federal rules regarding discovery and other practical applications. Also, they consider the advantages achieved by these new amendments.

In “International Discovery: Around the World in Ninety Minutes,” the authors discuss obtaining evidence from other countries to be used in a US litigation.[59] They discuss the legal ways to obtain evidence for a litigation in US from specific jurisdictions: Canada, United Kingdom, Mexico, China, and France.[60] Also, they show the type of the relationship between the federal rules of civil procedure and the Hague Convention in terms of the procedures to obtain evidence from abroad for a litigation taking place in the United States.[61] The article discusses the factors involved in issuing or enforcing a discovery order in transnational civil litigations in the US discovery rules and in the Hague Convention.[62] This article also considers the main discovery tools in the federal rules of discovery to be used to obtain evidence such as document requests, depositions and interrogatories, and compares them to the tools to collect evidence in the Hague Convention, which are Letters of Requests (Letters Rogatory) and through diplomatic officials and commissioners.[63] Also, it discusses the problems which might occur with the application of some clauses of the Hague Convention in common law and civil law jurisdictions.[64]

In Disclosure and Discovery Under the Federal Rules of Civil Procedure, the researcher discusses the procedural changes that have caused the discovery rules and procedures in the Federal Rules of Civil Procedural to evolve.[65] The changes in the federal rules in 1993 were in regard to dividing discovery into two major categories (court controlled discovery and attorney controlled discovery). The 2000 amendments were about having national uniformity in the federal courts and about minimizing the discovery costs.[66] In 2006, the amendments dealt with the discovery of the Electronically Stored Information.[67] The last amendments to the Federal Rules of Civil Procedure in 2015 were focusing much more on the Electronically Stored Information.[68]

In this book, the author confirms that the procedures and timing of discovery are binding in general, but the courts may make exceptions to these rules on a case by case basis. The two standards to allow exceptions are the preliminary injunction standard and the good cause standard.[69] The author, further, discusses the discovery rules which deal with the parties’ conference, the joint discovery plan, the initial disclosure, and the duty to supplement disclosure in terms of participants, time, place, costs, and scopes.[70]  One of the main discussions in this paper is the disclosure of experts who will be testifying in the litigation. The subjects of this discussion are the nature of the experts’ testimony, the requirements of the disclosure, the information that must be disclosed, the rebuttal reports, the timing of the disclosure, and the exemptions from disclosure of expert testimony.[71]

This book also discusses pretrial disclosure. The author considers the required pretrial disclosure, the forms of the disclosure, and the objections to disclose.[72] After that, a discussion about the scopes of discovery takes place.[73] Next, the author discusses the concept of proportionality which has been introduced to narrow discovery even more in the 2015 amendments of the Federal Rules of Civil Procedure.[74] Then, the researcher explores the interrogatories, document requests, and subpoenas for the Electronically Stored Information after the last amendments of the discovery rules in 2015.[75] In addition, the author examines the ways to handle the privileges under the rules of E-discovery, and the sanctions for violating these rules.[76] Then, the author discusses the privileges that apply to all discovery materials in general including Electronically Stored Information.[77] The depositions upon oral examination, and the use of depositions in general at trial are considered after that in much more detail.[78] Following this, the author discusses in detail as well interrogatories, document requests, requests for admissions, requests for physical or mental examination of a party, and subpoena practice.[79] Finally, a detailed discussion of Rule 37(c), which is about failure to disclose, false or misleading disclosure, and refusal to admit, takes place for more understanding of this terms.[80]

In A Measured Approach To E-Discovery, the author intends this research as a guide and includes the introductory basics for attorneys in dealing with the civil rules and ethical rules that govern E-discovery especially in terms of costs and burdens.[81] Also, in Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts, the author discusses the implications caused by discovering electronically stored information, and the new amendments regarding E-discovery in the federal rules and therefore in states’ laws. He considers the consensus in some state’s cases about the best practice that courts and parties might apply while practicing e-discovery. These two papers will be helpful in writing about E-Discovery in Chapter III of this dissertation regarding limits, scopes and the advantages of discovering electronic materials.

In Discovery in International Civil Litigation: A Guide for Judges, and in “Discovery in Transnational Litigation: Procedures and Procedural Issues”; and in Discovery and Other Procedures, the authors discuss the service of process outside of the United States for proceedings taking place within it, and the service of process in the United States for foreign proceedings. Also, they consider the methods to discover legal materials located abroad, and how to comply with discovery requests from foreign courts. They examine, as well, the challenges and consequences of seeking discovery abroad, and how to obtain evidence abroad under the U.S. discovery process and The Hague Convention. These publications are great guides to developing legal methods in Saudi Arabia to comply with foreign discovery requests and to conduct discovery abroad for Saudi civil proceedings in case a discovery process was adopted in the Saudi Arabian legal system.

On the other hand, in Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse, the author argues that the current system of discovery in the United States causes many practical problems and should be reformed. He believes that the discovery system costs parties unreasonable amounts of time and money, forcing them to settle their cases out of court to avoid these losses. He also claims that some discovery procedures are not necessary for justice and waste courts’ resources. The author suggests redrafting the discovery rules based on the subject matter of each case to make discovery narrower and more sufficient.

2. Methodology (Please include a discussion of your research methodology, including research sources, styles (eg: economic, gender-based, socio-legal, etc), proposed research and writing goals, a proposed timeline for your research and writing goals, and any on-site or in-person elements of research you plan to include):

As a lawyer who formerly practiced in Saudi Arabia’s civil courts, I am familiar with civil procedural law in Saudi Arabia and have first-hand experience with the practical problems of civil procedural law, namely, the lack of discovery rules. Furthermore, as a lecturer in King Abdul-Aziz University, my scholarship focused on civil procedural law in Saudi Arabia. During my LL.M. degree, I took civil procedural classes at Maurer School of Law and have thoroughly studied the discovery rules in the Federal Rules of Civil Procedure. I believe that I have the capability to conduct a comparative research analysis concerning the civil procedural laws in the United States and in Saudi Arabia.

The pertinent coursework that I have taken in which the main subject matters were relevant to the procedural laws in Saudi Arabia and the United States are the courses of Civil Procedure, Foundations of Fiqh (Islamic Jurisprudence), Executive Procedures, Sources of Obligation, Legal Effects of Obligation, Evidence, the Rules and Theories of Fiqh (Islamic Jurisprudence), Fiqh (Islamic Jurisprudence) of Punishments, and Criminal Procedure courses. Also, I have participated in many legal forums and courses in the field of procedural laws with participation of some law scholars, lawyers, and judges.

This research will consider the comparative legal analysis as the primary research method for further knowledge about both the American and Saudi legal systems, and to study the possibility of adopting a discovery process in Saudi Arabia. Using a comparative legal analysis as a method to study the legal status quo in the Unites States and Saudi Arabia can clarify how to transmit the discovery process from the United States legal system to the Saudi Arabian legal system.

Generally, a comparative legal analysis takes place where researchers try to characterize the similarities, differences or both of two or more systems to compare the results of problems in these systems. The purpose of this kind of analysis is to examine the relations between laws or legal systems in different jurisdictions in order to find solutions for some legal issues in these systems.[82] For a greater understanding of any legal system, a comparison with a different legal system should be conducted. In fact, currently, using foreign laws in writing new regulations has become very common in legislative enactment. Comparative legal studies are crucial in the land of Comparative Law, which refers to the discussion of laws and legal systems between different countries in terms of their similarities and differences. Comparative Law includes the analysis of foreign legal systems even if there is no apparent point of reference between the systems, as is the case in this research where no serious discovery process takes place in Saudi Arabia.[83]

Some people might think that this research should not be conducted as a comparative legal analysis because there are no discovery rules in Saudi Arabia. However, with the given explanations above, it should be obvious that conducting such an analysis does not require the existence of certain similarities or differences between the legal systems in comparison.  Exhibiting any level of similarities or differences between the legal systems is not necessary to conduct a comparative legal analysis between these systems.

Indeed, this comparative analysis will review and examine the absence of a serious discovery process in the Saudi civil procedural system. This analysis will discuss the current legal problems caused by this procedural gap, such as the delayed justice. Afterwards, it will scrutinize the Fifth Title of the United States Federal Rules of Civil Procedure, which contains the disclosures and discovery rules (Rules 26 to 37), to identify their advantages and disadvantages. The purpose of this examination is to uncover which discovery rules would be most appropriately applied to the Saudi Arabian civil procedural law.

Throughout this research, there will be reviews of the discovery rules of the Federal Rules of Civil Procedure and some comprehensive legal primary and secondary sources, which discuss the discovery process in the United States, to fully understand U.S. discovery doctrine. Further, this research will discuss legal scholarships by both critics and proponents of the U.S. discovery process. After thoroughly investigating each discovery rule, there will be discussions of the possibility and the applicability of adopting the disclosure and discovery rules into the Saudi civil procedural law considering the current procedural status in Saudi Arabia. Moreover, this research will consider the judicial problems that could be resolved if these discovery rules were adopted in Saudi Arabia. Of particular consideration will be the best ways to achieve the adoption of special applicable discovery rules into the Saudi civil procedural law and the legal mechanisms to execute and activate applicable discovery rules into the civil procedural system.

First, I will provide a literature review of commentary analyzing the disclosure and discovery rules from Title Five of the U.S. Federal Rules of Civil Procedure. Then, I will discuss the pros and cons of the discovery process in the United States’ jurisprudence. After doing so, I will examine which American discovery rules might be applicable to Saudi Arabia’s civil procedural law and why. I will lay out a plan and explain how to adopt the applicable discovery rules into the legal system of Saudi Arabia.

Next, I will complete a comparative analysis of the latest update of the discovery rules in the Federal Rules of Civil Procedure in the United States (2015) and the Saudi Civil Procedure Law (2013).  The analysis will focus on the advantages and disadvantages of the application of the discovery process in the United States and the prospective advantages and disadvantages of such application in Saudi Arabia’s legal system.

Finally, after addressing the judicial consequences and the potential legal reactions on the adoption of a discovery process in Saudi Arabia, I will conclude with recommendations of how Saudi Arabia ought to reform its civil procedural system by adopting a discovery process into its civil procedural law. Upon doing so, I will address the challenges of adopting a discovery process in Saudi Arabia under the current legal situation, and will demonstrate how these challenges can be pragmatically confronted and resolved.

Proposed Timeline

Proposed Bibliography (Fix the citations in each page before submitting!)

United States Codes and Statutes:

1. “28 USC App, Federal Rules of Civil Procedure, Title V: Disclosures and Discovery.” http://uscode.house.gov/view.xhtml?path=/prelim@title28/title28a/node85/titleV&edition=prelim.
2. “United States Code Service (USCS).” http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?prodId=7560.
3. “Moore’s Federal Practice, Full Set with SVC.”  http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=10106.
4. Becker, William H., and W. Brown Morton. Review of Federal Practice and Procedure, Civil Procedure. Vols. 4 & 5, by Charles Alan Wright and Arthur R. Miller. Michigan Law Review 69, no. 1 (1970): 149–55. doi:10.2307/1287453.
5. “Federal Rules of Evidence — 2016 Edition.” https://www.rulesofevidence.org/.

Saudi Arabian Laws:

6. Alnizam Alasasi Llhokm, [Basic Law of Governance], Royal Decree No. (A/90) 27 Shaban 1412 H. [1 March 1992]
7. Nizam Alqada, [The Saudi Judiciary Law], Royal Decree No. (M / 78) 19 Ramadan 1428 H. [1 October 2007] Cabinet Resolution (No. 303) 19 Ramadan 1428 H. [1 October 2007]
8. Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013]
9. Nizam Almorafa’at Alshariah Alqadeem, [The old Saudi Civil Procedure Law], Royal Decree No. (M / 21) 20 Jomada Alawal 1421 H. [20 August 2000]
10. Nizam Altanfeez, [The Saudi Implementation Law], Royal Decree No. (M / 53) 13 Shaban 1433 H [3 July 2012]
11. Nizam Tarkeez Masooleyat Alqada Alsharee, [The Saudi Judiciary Responsibilities Law], High Ratification (No. 109) 24 Moharram 1372 H [14 October 1952] Umm Al-Qura Gazette No. 1436 12 Safar 1372 H [1 November 1952]
12. Nizam Almorafa’at Amam Dewan Almazilem, [The Saudi Procedure Law before the Board of Grievances], Royal Decree No. (M / 3) 22 Moharram 1435 H [26 November 2013]
13. Nizam Almohama, [The Saudi Advocacy Law], Royal Decree No. (M / 38) 28 Rajab 1422 H [10 October 2001] Council of Ministers Resolution No. 199 14 Rajab 1422 H [2 October 2001]
14. Nizam Dewan Almazilem, [The Law of the Board of Grievances], Royal Decree No. (M/78) 19 Ramadan 1428 H. [1 October 2007]

Books and Journals about the Legal System in the United States:

15.  “Public Counsel’s Guides and Forms: Discovery —2015 Edition.” http://www.publiccounsel.org/featured?id=0003.
16. Harrison, Brett. International Discovery: Around the World in Ninety Minutes, August 7, 2008. http://www.mcmillan.ca/Files/BHarrison_AroundtheWorldinNinetyMinutes.pdf.
17. Buhler, Phillip A. “Transnational Service of Process and Discovery in Federal Court Proceedings: An Overview.” Tulane Maritime Law Journal 27, no. 1 (2003 2002): 1–42.
18. Ogden, David, and Sarah Rapawy. Discovery in Transnational Litigation: Procedures and Procedural Issues, March 16, 2007. http://apps.americanbar.org/buslaw/newsletter/0058/materials/pp1.pdf.
19. Harkness, Timothy. Discovery in International Civil Litigation: A Guide for Judges. 2015. http://www.fjc.gov/public/pdf.nsf/lookup/Discovery-in-International-Civil-Litigation.pdf/$file/Discovery-in-International-Civil-Litigation.pdf.
20. Born, Gary, and Andrew Vollmer. “The Effect of the Revised Federal Rules of Civil Procedure on Personal Jurisdiction, Service, and Discovery in International Cases.” 150 (October 1993): 221-45. (not online)
21. Shiva V. Hodges, A Measured Approach to E-Discovery: A Federal Practitioner’s Guide to the Civil and Ethical Rules Governing E-Discovery, 64 S. C. L. Rev. 755, 786 (2013)
22. Ellsworth, Laura. “Significant Changes to the Federal Rules of Civil Procedure.” http://www.jonesday.com/significant-changes-to-the-federal-rules-of-civil-procedure-expected-to-take-effect-december-1-12015-practical-implications-and-what-litigators-need-to-know-09-25-2015/.
23. Hansen, Danielle M. “The Inevitable Discovery Rule-Justice Served or Justice Thwarted?” Touro Law Review 28, no. 3 (July 2012): 715-49.
24. Koppel, Joshua. “Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse.” University of Pennsylvania Law Review 161, no. 1 (December 2012): 243-89.
25. Jimerson, Cobb P. A.- Br, and on C. Meadows. “Significant New Changes to the Rules of Discovery in Federal Court | Lexology.” http://www.lexology.com/library/detail.aspx?g=d34b6e33-fae9-4568-9ccd-355150323775.
26. Battaglia, Anthony J. “Disclosure and Discovery Under the Federal Rules of Civil Procedure”, U.S. District Judge, 2016.
27. Call to Action: Achieving Civil Justice for All: Appendix E “Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts” by Thomas Y. Allman and others, 2016.
28. Am. Soc’y Int’l L., “Discovery and Other Procedures,” in Benchbook on International Law § II.C (Diane Marie Amann ed., 2014), available at www.asil.org/benchbook/discovery.pdf

Books and Journals about Islamic Law and Saudi Arabian Legal System:

29. Bhala, Raj. Understanding Islamic Law, Second Edition, 2016. Carolina Academic Press. http://www.cap-press.com/books/isbn/9781632849502/Understanding-Islamic-Law-Second-Edition.
30. Kechichian, Joseph A. Legal and Political Reforms in Saudi Arabia. Routledge, 2013.
31. Ansary, Abdullah. “UPDATE: A Brief Overview of the Saudi Arabian Legal System – GlobaLex.” http://www.nyulawglobal.org/globalex/Saudi_Arabia1.html.
32. Al-Jarbou, Ayoub M. “Judicial Independence: Case Study of Saudi Arabia.” Arab Law Quarterly 19, no. 1/4 (2004): 5–54.
33. Maklouf, Ahmed. Alwaseet Fe Sharh Altanzem Alqadai Aljadid Fe Belmamlaka Alarabia Alsaudia (The Mediator in Explaining the New Legal Arrangement in Saudi Arabia). Riyadh: Institute of Public Administration, Markaz Al-Buhuth, 2013.
34. Barakat, Ali. Alwaseet Fe Sharh Nizam Alkdha’a Alsa’oudi Aljadid (The Mediator in Explaining the Saudi Judiciary Law). Riyadh: Library of Law and Economy, 2012.
35. Dewidar, Tala’at. Alwaseet Fe Sharh Nizam Almorafa’at Alshariah Wa Laehatoh Altanfetheah in Saudi Arabia (The Mediator in Explaining the Saudi Civil procedural law and Its Executive Regulation). Jeddah: Dar Hafiz for Publishing and Distribution, 2013.
36. Al-Jarbou, Ayoub M. “The Role of Traditionalists and Modernists on the Development of the Saudi Legal System.” Arab Law Quarterly 21, no. 3 (2007): 191-229. http://www.jstor.org/stable/27650587.
37. Alasmi, Mohammed A. Disciplinary Liability for Lawyers in Saudi Arabia, 2015.
38. Ahmed, Fouad Abdel-Moneim, and Alhussein Ali Ghoneim. Ahkam Aldofo’ Fe Nizam Almorafa’at Alshariah Alsaudi (The Provisions of the Defenses in the Saudi Civil procedural law). Alexandria: Modern Arab Bureau, 2002.
39. Alsolami, Fahad. Aldaf’a Bea’dam Kobool Alda’wa Fe Nizam Almorafa’at Alshariah Alsaudi (Motion to Dismiss the Case in the Saudi Civil procedural law). Master’s thesis, Naif University for Security Sciences, 2008.

[1] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Articles No. 55 to 60

[2] Almofada, Bashar. “الاقتصادية: مقترحات لتطوير الإجراءات القضائية «1». [Proposals for the Development of the Judicial Proceedings in Saudi Arabia ‘1’]”. https://www.aleqt.com/2016/02/13/article_1029884.html.

[3] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Articles No. 145

[4] “وزارة العدل تسرع النظر في القضايا ..وعقوبات صارمة للمماطلين في الحضور.” جريدة الرياض. [The Ministry of Justice Try Speed Up the Consideration of the Cases and Strict Penalties on Procrastinating Parties in Attending the Hearings]. http://www.alriyadh.com/620194.

[5] Almofada, Bashar. “الاقتصادية: مقترحات لتطوير الإجراءات القضائية «1». [Proposals for the Development of the Judicial Proceedings in Saudi Arabia ‘1’]”. https://www.aleqt.com/2016/02/13/article_1029884.html.

[6] عبيان, حوار/ عبدالله. “وزير العدل لـ عكاظ: القاضي يخضع للرقابة.. وتأديبه يتم بسرية.” [Minister of Justice to Okaz: Judge Is Subject to Censorship, and Discipline Are Confidential] Okaz, February 14, 2016. http://www.okaz.com.sa/article/1043057/%D8%A7%D9%84%D8%B1%D8%A3%D9%8A/.

[7] Alrashed, Abdulaziz. “أطول قضايا المحاكم: الطلاق ، الحضانة ، الخلع!” [The Longest Cases in Court: Divorce, Custody, and Khula] جريدة الرياض. http://www.alriyadh.com/959085.

[8] “«محاكم متخصصة» تحسم القضايا المتراكمة!” جريدة الرياض. [Specialized Courts to resolve the Backlog of Cases]. http://www.alriyadh.com/871739.

[9] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Article No. 66

[10] Id. Article No. 45

[11] Id. Article No. 53

[12] Id. Article No. 145

[13] Id. Article No. 53

[14] Hirbyand, James. “What Percentage of Lawsuits Settle Before Trial? What Are Some Statistics on Personal Injury Settlements?”. http://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/.

[15] Almofada, Bashar. “الاقتصادية: مقترحات لتطوير الإجراءات القضائية «1».” [Proposals for the Development of the Judicial Proceedings in Saudi Arabia ‘1’]. https://www.aleqt.com/2016/02/13/article_1029884.html.

[16] Aljarallah, Abdulaziz. “عدم وجود آليات واضحة لإدارة القضايا تسبب بتأخيرها في المحاكم.” جريدة الرياض. [The Absence of a Clear Mechanism for the Management of Cases in Courts Causes Delaying the Cases]. http://www.alriyadh.com/849809.

[17] “وزارة العدل تسرع النظر في القضايا…وعقوبات صارمة للمماطلين في الحضور.” جريدة الرياض. [The Ministry of Justice Try Speed Up the Consideration of the Cases and Strict Penalties on Procrastinating Parties in Attending the Hearings]. http://www.alriyadh.com/620194.

[18] Alnizam Alasasi Llhokm, [Basic Law of Governance], Royal Decree No. (A/90) 27 Shaban 1412 H. [1 March 1992], Article No. 48

[19] Alseyat, Esam. “مراحل إصدار القانون في المملكة العربية السعودية.” [The stages of issuing the law in the Kingdom of Saudi Arabia]. http://www.al-jazirah.com/2014/20140706/rj8.htm.

[20] Id.

[21] Alnizam Alasasi Llhokm, [Basic Law of Governance], Royal Decree No. (A/90) 27 Shaban 1412 H. [1 March 1992], Article No. 67

[22] Alnizam Alasasi Llhokm, [Basic Law of Governance], Royal Decree No. (A/90) 27 Shaban 1412 H. [1 March 1992], Article No. 1

[23] Id. Article No. 7

[24] Id.

[25] Id. Article No. 8

[26] Alkhnazan, Mansour. “اللجان شبه القضائية ..المشكلة والحلول.” جريدةالرياض. [Quasi-judicial committees .. problem and solutions]. http://www.alriyadh.com/639561.

[27] Nizam Alqada, [The Saudi Judiciary Law], Royal Decree No. (M / 78) 19 Ramadan 1428 H. [1 October 2007] Cabinet Resolution (No. 303) 19 Ramadan 1428 H. [1 October 2007], Article No. 25

[28] Id. Articles 9 to 24

[29] Ministry of Justice. “الهيكل التنظيمي للمحاكم.” [The organizational structure of the courts]. https://www.moj.gov.sa/ar-sa/Courts/Pages/StructureCourts.aspx.

[30] Nizam Alqada, [The Saudi Judiciary Law], Royal Decree No. (M / 78) 19 Ramadan 1428 H. [1 October 2007] Cabinet Resolution (No. 303) 19 Ramadan 1428 H. [1 October 2007], Article No. 6

[31] Nizam Dewan Almazilem, [The Law of the Board of Grievances], Royal Decree No. (M/78) 19 Ramadan 1428 H. [1 October 2007], Article No. 13

[32] Id. Articles No. 8 to 15

[33] Nizam Dewan Almazilem, [The Law of the Board of Grievances], Royal Decree No. (M/78) 19 Ramadan 1428 H. [1 October 2007], Article No. 5

[34] Nizam Almorafa’at Amam Dewan Almazilem, [The Saudi Procedure Law before the Board of Grievances], Royal Decree No. (M / 3) 22 Moharram 1435 H [26 November 2013]

[35] Alkhnazan, Mansour. “اللجان شبه القضائية ..المشكلة والحلول.” جريدةالرياض. [Quasi-judicial committees .. problem and solutions]. http://www.alriyadh.com/639561.

[36] Alkholi, Omar. “الخولي: لا ضوابط لعمل اللجان شبه القضائية.” [Al-Kholi: No controls for the work of quasi-judicial committees] Okaz, November 28, 2013. http://okaz.com.sa/article/625036/.

[37] Almolhem, Molhem. “اللجان شبه القضائية.” [Quasi-judicial committees] صحيفةالاقتصادية, March 23, 2017. http://www.aleqt.com/2017/03/23/article_1156206.html.

[38] Alkholi, Omar. “الخولي: لا ضوابط لعمل اللجان شبه القضائية.” [Al-Kholi: No controls for the work of quasi-judicial committees] Okaz, November 28, 2013. http://okaz.com.sa/article/625036/.

[39] Alkhnazan, Mansour. “اللجان شبه القضائية ..المشكلة والحلول.” جريدةالرياض. [Quasi-judicial committees .. problem and solutions]. http://www.alriyadh.com/639561.

[40] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Articles No. 13 & 41

[41] Id. Article No. 45

[42] Id. Article No. 53

[43] Id. Article No. 65

[44] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Article No. 66

[45] Id. Article No. 67

[46] Id. Article No. 74

[47] Id. Article No. 104

[48] Id. Articles No. 105 & 106

[49] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Article No. 107

[50] Id. Articles No. 108 & 109

[51] Id. Article No. 111

[52] Id. Article No. 112

[53] Id. Article No. 113

[54] Id. Article No. 114

[55] Nizam Almorafa’at Alshariah, [The Saudi Civil Procedure Law], Royal Decree No. (M / 1) 22 Moharram 1435 H. [26 November 2013], Article No. 122

[56] Id. Article No. 126

[57] Id. Article No. 149

[58] Alnizam Alasasi Llhokm, [Basic Law of Governance], Royal Decree No. (A/90) 27 Shaban 1412 H. [1 March 1992], Article No. 44

[59] Harrison, Brett. International Discovery: Around the World in Ninety Minutes, August 7, 2008. http://www.mcmillan.ca/Files/BHarrison_AroundtheWorldinNinetyMinutes.pdf., Page No. 1.

[60] Id. At page No. 2.

[61] Id. At page No. 2.

[62] Harrison, Brett. International Discovery: Around the World in Ninety Minutes, August 7, 2008. http://www.mcmillan.ca/Files/BHarrison_AroundtheWorldinNinetyMinutes.pdf., Page No. 3.

[63] Id. At pages No. 6 & 9.

[64] Id. At page No. 8.

[65] Battaglia, Anthony J. “Disclosure and Discovery Under the Federal Rules of Civil Procedure”, U.S. District Judge, 2016., At page No. 1.

[66] Id. At page No. 1.

[67] Battaglia, Anthony J. “Disclosure and Discovery Under the Federal Rules of Civil Procedure”, U.S. District Judge, 2016., At page No. 52.

[68] Id. At page No. 56.

[69] Id. At page No. 5.

[70] Id. At pages No. 7, 13, 16, 22, 94.

[71] Id. At page No. 24.

[72] Id. At page No. 44.

[73] Id. At page No. 46.

[74] Id. At page No. 48.

[75] Id. At page No. 68.

[76] Id. At pages No. 75, 79.

[77] Id. At page No. 84.

[78] Id. At pages No. 96, 116.

[79] Id. At pages No. 127, 141, 147.

[80] Id. At page No. 152.

[81] Shiva V. Hodges, A Measured Approach to E-Discovery: A Federal Practitioner’s Guide to the Civil and Ethical Rules Governing E-Discovery, 64 S. C. L. Rev. 755, 786 (2013)

[82] http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199296064.001.0001/oxfordhb-9780199296064-e-012

[83] https://en.wikipedia.org/wiki/Comparative_law