The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in "Litigation" Reform

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I. THE LACK OF SYSTEMIC PERSPECTIVE IN PRIOR DEBATES OVER "LITIGATION" REFORM 206

A. Consistent, Even Necessary, Relation............................... 206

B. Promoting the Policy of Preventing and Exposing Perjury............................... 207

C. Post Hoc Rationalizations............................... 211

II. THE LACK OF SYSTEMIC PERSPECTIVE AS A TRIGGER FOR THE LAW OF UNINTENDED CONSEQUENCES............................... 213

III. EXAMPLES OF THE OPERATION OF THE LAW OF UNINTENDED CONSEQUENCES IN THE ATTEMPTED REFORM OF "LITIGATION" PRACTICES............................... 218

A. The Unintended Consequences of the Reform of Pretrial Practices: The 1993 Amendment of Federal Rule of Civil Procedure............................... 26............................... 218

B. The Unintended Consequences of the Reform of Evidence Rules: Federal Rule of Evidence 612............................... 224

C. The Emerging Pattern............................... 229

IV. A COUNTER-EXAMPLE OF SYSTEMIC LITIGATION REFORM: THE CASE FOR THE ENACTMENT OF NEW FEDERAL RULE OF EVIDENCE 502 ON PRIVILEGE WAIVER............................... 230

V. CONCLUSION............................... 235

"In some one of its numerous forms, the problem of the unanticipated consequences of purposive action has been treated by virtually every substantial contributor to the long history of social thought."

-Robert K. Merton1

There is a paradox at the heart of the American litigation system. On the one hand, we have the most liberal pretrial discovery rules of any advanced country. In many American jurisdictions, a litigant can not only discover information relevant to the allegations in the pleadings; the litigant can even discover information relevant to allegations that the pleadings could be amended to include.2 The consequences of that liberality are startling:

Perhaps no case could be a more monumental example of the reality of modern ... e-discovery than the ongoing Viacom copyright infringement lawsuit against YouTube filed back in 2008. In that dispute, the judge ordered that 12 terabytes of data be turned over, according to Matthew Knouff. "People often say that one terabyte equals 50,000 trees, and 10 terabytes would be the equivalent of all the printed collections of the Library of Congress," says Knouff, who is general counsel of Complete Discovery Source, a New York City-based... discovery services provider. For the Viacom/YouTube case then, the demand was for the printed equivalent of the entire Library of Congress. And then some.3

It is no wonder that foreign corporations are so reluctant to set foot in an American courtroom.4 They routinely insist on arbitration and choice-of-forum clauses to avoid subjecting themselves to the burden and expense of such breathtakingly broad discovery rules.5

On the other hand, the United States has the most complex, restrictive set of evidentiary rules governing the admissibility of evidence at trial.6 The continental countries still largely adhere to the civil law tradition of "free proof."7 Although it is an overstatement to claim that "there is no such thing as European Continental Evidence law,"8 the continental systems have largely abandoned the canon9 and Roman10 law rules requiring the trier of fact to assign specified weight to particular types of evidence.11 In addition, as a general proposition civilian systems recognize fewer of the exclusionary evidentiary rules that characterize American law.12 For that matter, even countries that share the common-law tradition with the United States have substantially liberalized their admissibility standards. Thus, England, the birthplace of the hearsay rule, has significantly relaxed that exclusionary doctrine by conferring more discretion on judges to admit demonstrably reliable, valuable hearsay testimony.13 In contrast, in the United States, the doctrine remains a complicated edifice with a definition,14 two exemptions,15 and no fewer than thirty different exceptions. …