Fishing Expedition

Pejorative term used in discovery to describe speculative discovery undertaken without any clear idea of what is being sought, genuine reason to believe evidence might exist, or if it is found what the evidence might tend to prove, or what claim if any it might be relevant to.  More significantly, a fishing expedition is an investigation, discovery or search that is obviously targeted at finding a different claim or violation than the underlying legal claim used to justify the discovery or investigation in the first place.  The term has been adopted into usage by almost all courts including for example the European General Court which in 2012 ruled with respect to a dawn raid by the European Commission’s Competition Directorate that:

“The Commission was therefore able to conduct a ‘fishing expedition’ and to search the premises of that company for documents and useful information for the purposes of detecting possible infringements of the competition rules in the context of all the applicants’ activities rather than solely in the context of the sector covered by the investigation.” Nexans v. Commission

The term ‘fishing expedition’ tends to be rather abused, a fact alluded to in the seminal US discovery case, Hickman v. Taylor, 329 U.S. 495 (1947):

“No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”

At the heart of the question of whether discovery or an investigation is a ‘fishing expedition’ is whether it is directed to finding relevant evidence and facts to the claims made in the case at hand.  If it is, then that other unrelated facts and evidence might also be unveiled is irrelevant – but if the only facts and evidence likely to be found is irrelevant to the current matter, then use of the term ‘fishing expedition’ may be fair.


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