Academic journal article Vanderbilt Law Review

Opting out of Discovery

Academic journal article Vanderbilt Law Review

Opting out of Discovery

Article excerpt


As the recurring efforts to reform the discovery rules over the past thirty-five years attest,1 discovery is controversial. The basic critiques-costliness and, relatedly, potential for abuse-are a byproduct of discovery's effectiveness in unearthing a vast array of information of possible consequence to resolving lawsuits.2 These critiques are leveled not just by domestic reformers. on the world stage, the capaciousness of discovery is viewed as a primary instance of the American legal exceptionalism that other countries seek to avoid at all costs.3

To a considerable extent, discovery may be a victim of bad press. In a third or more of federal cases, no discovery occurs, and discovery costs in most other cases are not burdensome.4 In the main, lawyers are satisfied with the process, believing that it reveals the right amount of information at a fair price.5 Data from state courts also show that discovery costs constitute only a small fraction of the total recovery from litigation6-surely a reasonable expenditure for a process that enhances the accuracy of resolving disputes.

Although it seems to function well in most cases, discovery is problematic in a small percentage of cases-often those with the greatest informational content and therefore the greatest discovery demands.7 Rather than attempting to isolate those cases and seek solutions unique to their circumstances, however, reform efforts over the past thirty-five years have sought to make across-the-board changes to the pretrial system. Aside from amendments restricting the scope of discovery,8 reforms include the mandatory disclosure of some information;9 heftier case-management powers for judges;10 change to the standard for motions to dismiss (so that cases will not proceed as easily to discovery);11 and sanctions for filing frivolous pleadings, discovery requests, and discovery responses.12

These reform efforts are unlikely to achieve their goal of reducing cost and ending abusive discovery practices. An ideal discovery system produces only the information essential to resolve a lawsuit by its best means (adjudication, settlement, or dismissal). Production of information extraneous to this resolution must be kept to a minimum, and production of information sought for abusive purposes must be curtailed entirely.13 To a significant degree, the architecture of the existing discovery system reflects this ideal.14 The difficulty lies in the application of the ideal, especially in an adversarial system.

To state the obvious, information is information: the purpose(s) for which it is sought and the uses to which it may be put vary with circumstances. In most cases it is too expensive-if even possible-to determine, request by request, whether the discovery sought is essential, extraneous, or abusive. This sorting problem has become considerably more difficult in light of the explosion of information generated through innovations like word processing and email.

The difficulties of sorting information piece by piece make default rules attractive. Indeed, the Federal Rules of Civil Procedure contain some default rules. For instance, the parties' mandatory obligation to disclose the identity of witnesses and documents that support the parties' claims or defenses15 reveals more than is essential to the lawsuit's resolution, but a flat rule of disclosure avoids expensive inquiries that sort the essential from the extraneous. Commentators have offered other default rules to pare discovery to its essence. Many of these proposals rely on economic incentives: for instance, making the person seeking discovery pay for it16 or requiring a plaintiff who fails to survive a motion to dismiss to pay the defendant's costs of discovery.17 So far, there is less appetite for even broader default rules: for instance, a rule eliminating all discovery (on the theory that discovery's global costs outweigh its benefits)18 or a rule allowing discovery to proceed without regulation (on the theory that discovery's global benefits outweigh its costs). …

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