Confronting Civil Discovery's Fatal Flaws

Despite the conclusion of a recent study that discovery is working “effectively and efficiently” in the majority of cases, federal district courts and courts of appeals address discovery disputes in many more reported opinions today than they used to. This fact confirms the impression of many judges and lawyers that over-discovery, evasion, delay, and confrontation rather than cooperation remain problematic aspects of civil discovery practice. After examining the way in which civil discovery was intended to work, John S. Beckerman considers flaws inherent in the discovery process and shows why the ideal of cooperation with a minimum of judicial intervention is unachievable in a significant minority of cases. First, the cooperative ethos of discovery clashes irreconcilably with the oppositional character and partisan norms of all other phases and attributes of adversarial litigation, including well articulated and widely accepted professional responsibility directives that many lawyers take to define what it means to be a litigator, to represent a client loyally, and to protect the client’s confidences. Second, the informationgathering and issue-defining functions performed by discovery in a notice-pleading regime require broad and copious discovery that often generates disputes. Third, the procedures provided by the Federal Rules of Civil Procedure for adjudicating discovery disputes are cumbersome and incorporate an inefficient incentive structure. Fourth, judges often neglect lawsuits in which counsel are engaged in discovery battles, with the result that the adversaries founder ever deeper into non-cooperation, confrontation and impasse. Fifth, many courts treat discovery problems with inappropriate leniency even when they involve egregious instances of obstruction, evasion or suppression, failing either to remove bad actors from the litigation arena or to impose sanctions that provide adequate disincentives to future misconduct. Sixth, irreversible changes in the conduct of business and practice of law have contributed indirectly to the persistence of discovery disputes, in particular, the exponential proliferation of documents resulting from the invention and ubiquity of high-speed copiers, the storage of data and documents on electronic media, increases in the size and complexity of transactions and lawsuits, and the growth of the legal profession and law firms. Beckerman then probes the most often proposed solutions to discovery problems, including narrowing the scope of discovery ordinarily available under the Federal Rules of Civil Procedure, demanding more firm and constant judicial intervention from an early point in a lawsuit, and promoting greater education in and adherence to norms of professionali sm and civility, and shows why none of these solutions is likely to succeed. He first analyzes the pending amendment of Rule 26 of the Federal Rules of Civil Procedure, which would narrow the scope of “attorney-man aged” discovery, and which was approved by the Judicial Conference of the United States in September 1999 and is awaiting action by the Supreme Court. He concludes that, far from its intended effect of reducing discovery problems, the proposed amendment will actually increase discovery disputes and satellite litigation. Second, Beckerman demonstrates that certain economists’ analyses of discovery problems and their proposed solutions based on principles of cost internalization are flawed by misunderstanding of the conduct and nature of discovery in practice and by the substitution of economic efficiency alone for a host of values and policy concerns that should inform design of the litigation process. Third, he shows that although judges and lawyers have been calling for greater judicial supervision of discovery continuously for at least forty years, docket pressure, opportunity costs and the obnoxiously vituperative nature of discovery squabbles make it unrealistic to expect significant changes in judicial behavior. Fourth, he concludes that hardball and Rambo litigation tactics represent not merely a problem of civility, but a fundamental problem of professional responsibility that neither the bench nor bar has been willing to recognize for what it is or take responsibility for addressing effectively.