Addressing the Adversarial Dilemma of Civil Discovery

than it is in reality. From an ethical standpoint, it need only be noted that the American Bar Association's Model Code and Model Rules specifically prohibit a lawyer from disobeying a rule of court 238 and even go so far as to command that a reasonably diligent effort be undertaken to comply with a legally proper discovery request. Therefore, the Code and Rules, which prescribe fidelity to the client's interests, also command an attorney to temper that fidelity with compliance to rules of court which reflect society's and the legal system's needs and values. The prohibition against damaging a client's interests extends only as far as the rules of court and the availability of evidentiary privileges permit. Since the discovery reform proposed by this article will be implemented through procedural rules of court and the ability to assert protective evidentiary privileges will remain unchanged, there simply does not exist a serious ethical impediment to the proposed process. More important is the related issue of a lawyer consciously avoiding preparation of those aspects of a case for which the information must be automatically disclosed to the opposing party without need of a discovery request. For unless the lawyer avoided entirely the gathering of potentially detrimental information in areas subject to automatic disclosure, the client's case would not only be prejudiced, but the opponent's case preparation would have been accomplished on borrowed wits, paid for by the client whose case was detrimentally affected. Thorough and appropriate pretrial preparation by one party could permit the opponent to sit back and simply ride the coattails of a more conscientious attorney. It seems only right that, at the very least, the opposing attorney should be made to ask, in a legally appropriate manner, for the information he believes he needs to prepare his case. Otherwise, the first attorney would be doing the work for both parties, a clearly anomalous role for a lawyer in an adversary system. The automatic disclosure proposal made in this article has been tailored to minimize concerns over its potential impact on thorough case 38 See, e.g., MODEL CODE OF PROFESSIONAL RESpONSIBILrTY DR 4-101(C)(2); DR 7-102(A)(3) (1980), MODEL RuLEs OF PROFESSIONAL CoNDucT Rule 3.4(c)(1983). 239 MODEL RuLEs OF PROFESSIONAL CoNDucr RuLE 3.4(d)(1983). 19881 45 Published by EngagedScholarship@CSU, 1988 CLEVELAND STATE LAW REVIEW preparation by the parties to a dispute. The proposed procedural changes have been limited to general categories of information which are highly relevant, unprivileged and reasonably suggested by the nature of the dispute itself. Such information would be easily identifiable, is even today subject to virtual automatic disclosure simply for the asking, and would be routinely available to a party as a natural consequence of their role in the events and/or subject matter of the dispute. A party, even under the discovery rules now in existence, would have no reasonable expectation of keeping such information from their opponent. The only real change proposed herein is the manner of disclosure. The need to disclose has always existed and, absent notions of evasion, delay, and other forms of game playing, disclosure has been the expected norm. Even in the face of anticipated disclosure, attorneys have diligently prepared their cases. There should be no reason, under the revised procedures proposed in this Article, for that situation to change. It should be noted that even if an attorney felt that the gathering of certain basic information would be detrimental to his client's case, the discovery rules require that, when asked by the opposing party, an attorney must make reasonable inquiry to obtain the information being requested.2 Avoiding reasonable inquiry before discovery in the hope of avoiding disclosure during discovery is simply not a viable tactic. Sooner or later reasonable inquiry will have to be made and the information disclosed. If that information is of a type which is routinely available to a party based on his role in the dispute, then the reasonable inquiry requirement will flush it out whether or not the party wishes to avoid disclosure. Since the reasonable inquiry requirement would apply to the automatic disclosure proposal discussed herein, preparation avoidance would not pose a serious problem. Finally, we need to address the concern that the proposed automatic disclosure process erodes the very principles upon which the adversary system is based. Namely, that each party prepares and presents his case in his own way so that through the clash of viewpoints and skills the facts and the issues in dispute are thoroughly tested. When one party is required to help his opponent in preparing the opponent's cases, the principles of adversarial dispute resolution are severely strained. While discovery, as it now exists, impinges upon these principles, it balances the detriment by requiring the disclosure process to remain essentially adversarial. Mandated automatic disclosure, without adversarial trappings, carries discovery well beyond the fundamental principles which have long guided the litigation process. Discovery itself made a major 240 FED. R. Civ. P. 26(g) requiring "reasonable inquiry "; WIGHT & MILLER, supra note 125, at § 2177; R. HAYDOCK & D. HERR, DLCOVERY PRACTICE § 4.6.2 (1982); Milner v. National School of Health Technology, 73 F.R.D. 628, 632-33 (E.D. Pa. 1977). [Vol. 36:17 46 http://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss1/10 DILEMMA OF CIVIL DISCOVERY change in the old sporting theory of litigation. Mandated automatic disclosure would seem to carry the process of reform to its ultimate conclusion and eliminate much of the contest aspect of adversarial dispute resolution, a process upon which the common law has long been based. The concern over erosion of the adversary process can be addressed in several ways. First, as has repeatedly been pointed out above, the information which would be subject to automatic disclosure is information which a party, under existing discovery practice, has virtually no expectation of protecting from disclosure and would today be available to the opposing party simply for the asking. Second, one of the primary purposes of discovery, virtually from its inception, has been to make the trial of a lawsuit fairer and more efficient by forcing the parties to share information before trial. Being in possession of essentially the same information at trial allows the adversarial process to work as it was intended. The clash of contestants over issues and facts known to both sides clearly yields a better and fairer decision than one resulting from a contest in which either side lacked substantial information. But full and appropriate pretrial disclosure of relevant information can only be achieved if the discovery process is substantially less adversarial than the subsequent trial. Otherwise, the old sporting theory of litigation would not only apply to trials themselves, but also to the pretrial preparation process. The field of play, instead of being narrowed, would have been substantially expanded. If the history of the development of discovery demonstrates anything, it is that such a result was neither intended nor desired. Finally, any concern over the potential erosion of the adversary process as a result of the proposal made in this Article must recognize a current reality that the adversary system of dispute resolution, as exemplified by lawyer represented, court adjudicated, contests, has fallen into considerable disfavor. Not only have academics written on the failure of faith in traditional adjudicatory processes, 24 1 but the increasing interest in and use of alternative means of dispute resolution clearly demonstrates society's search for fair, efficient and accessible resolution processes which do not carry with them the detriments and disfavor of traditional adversarial litigation. Dissatisfaction with the adversarial system is also reflected in a number of Supreme Court decisions. For example, in Walters v. National Association of Radiation Survivors,243 the court discussed at length the 241 See e.g., Resnik, supra note 18, at 494. 242 Lieberman & Henry, Lessons from the Alternative Dispute Resolution Movement, 53 U. Cm. L. Rev. 424 (1986); J. MARKS, E. JOHNSON, JR. & P. S2ANroN, DISPUTE RESOLUTION IN AMERICA: PROCESSES IN EVOLUTION, NATIONAL INSTITUTE FOR DIsPUTE RESOLUTION (1984). 243 473 U.S. 305 (1985). 1988] 47 Published by EngagedScholarship@CSU, 1988 CLEVELAND STATE LAW REVIEW detriments of adversarial, lawyer involved, resolution of veterans disability claims. Finding that the claim process was intended to be as informal and nonadversarial as possible, the court declined to invalidate a century old ten dollar limitation on attorneys fees, thus effectively eliminating lawyers from the claim resolution process, and thus promoting a nonadversarial environment. There can be no question that discovery represents an intentional erosion of the pure adversary process of the early common law. The proposal contained in this Article for partial automatic pretrial disclosure of information is a further intentional erosion of the adversary process. But it is an erosion which promotes fairness, efficiency and credibility, and thus, in the final analysis, strengthens the adversary system by confining it to its proper role of testing the facts and issues at trial.