Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking

Abstract

A striking feature of the passage of the Civil Justice Reform Act of 1990 was the consensus that some kind of reform of civil litigation was needed. This belief rested not, as one might think, on reliable empirical research, but rather on the myth that Americans over-litigate, especially by abusing discovery. This article documents the belief in American litigiousness which has become a staple of the popular media and traces the myth's incorporation, through questionable social science, in the key documents of the civil justice reform movement.

Turning to two methodologically rigorous studies of the discovery process, this research both illustrates the real difficulties in documenting discovery abuse and suggests such abuse is rare. Rather than attacking a problem, reform of civil discovery has created unnecessary balkanization and confusion in the civil justice system. The purpose of this article is to document the making and dispersion of a set of beliefs that pervades American culture: the myth of American litigiousness and pervasive discovery abuse. The article chronicles how widespread acceptance of this myth has fueled recent demands for civil justice reform, leading to unfounded and bad rulemaking. If there is a keystone in the arch of civil litigation, it is the pretrial discovery process. The media's constant repetition of the theme of American litigiousness has made discovery a prime target for reformers.

As the message of discovery abuse saturated public consciousness, it was reinforced by multiple legislative responses ― of which the Civil Justice Reform Act is but one ― to the perceived problems. The Civil Justice Reform Act is not alone either in embracing the discovery myth or in requiring discovery reform, but merely joins the larger civil justice reform movement taking place in all three branches of federal government and in state governments as well. The CJRA is, however, the most far-reaching of the reform efforts, as a result of its rulemaking consequences at the local federal district court level.

What canards inspired the civil justice reform movement? We believe America is the most litigious society on earth not because this is true, but because the media have told us so over and over again. We believe American society has run amok because our fellow citizens have a shameless propensity to file frivolous lawsuits ― again, not because this is true, but because our newspapers and television shows inundate our collective consciousness with examples of outrageous and ridiculous litigation. We believe American civil litigation is out of hand because notoriously greedy lawyers engage in serious discovery abuse ― not because they do, but because litigiousness has become linked in our minds with discovery abuse.

This article argues that the massive discovery reform agenda unleashed simultaneously through the Advisory Committee on Civil Rules, the CJRA, and executive branch orders is based on questionable social science, “cosmic anecdote,” and pervasive, media-perpetuated myths. In addition, it argues that the absence of serious empirical research underlying this rulemaking has allowed the development and implementation of questionable discovery rules. Future federal litigants will suffer because in the early 1990s the rulemakers accepted myth as reality, did not do their homework to discover the truth, and then permitted the rulemaking process to be permeated by interest group preferences.

Finally, this article suggests that reform of federal civil discovery may not have been necessary at all: There is no strong evidence documenting the alleged massive discovery abuse in the federal courts. The rulemakers never established the existence of discovery abuse before embarking on their crusade to revamp discovery. Indeed, existing empirical studies challenged the received notion of pervasive discovery abuse. The message of this article is simple and not new: Sound, persuasive empirical study ought to undergird every rule reform effort; in particular, there must be convincing evidence that a problem exists before any rulemaking group begins the process of rule revision.

Part I describes the pervasive myth of discovery abuse, suggesting that the collective perception of discovery abuse is but one aspect of a larger myth of American litigiousness, itself a pervasive belief that has seized the public consciousness in spite of the existence of contrary evidence. I explain how politicians, lawyers, judges, insurance companies, and other interested parties successfully have used the media to identify American litigiousness as a societal ill. In addition, Part I documents the extent to which the myth of litigiousness and its accompanying evils, including discovery abuse, has permeated our culture.

Part II demonstrates that the pervasive myth of discovery abuse rests upon inadequate social science findings. This section critiques the methodology, analysis, and conclusions of the 1988 Louis Harris survey that provided the basis for the 1989 report of the Brookings-Biden task force, Justice For All. This report in turn provided the impetus for the CJRA, as well as, apparently, for the President's Council on Competitiveness study leading to the Agenda for Civil Justice Reform. In turn, these materials also formed the bases for many of the discovery reform efforts undertaken by the civil justice advisory groups created pursuant to the CJRA.

Part III examines the methodological problems entailed in conducting sound empirical research on discovery and focuses on the differences between survey research and court-based studies. This section also reviews the analyses and conclusions of the 1978 Federal Judicial Center study of discovery in federal courts, the only comprehensive empirical study of federal courts conducted thus far. Not only did this study illustrate the difficulties in studying federal court discovery, but it documented a surprisingly low incidence of discovery in federal civil litigation. This Part concludes with a review of the 1993 National Center for State Courts study on discovery abuse in state courts, whose findings paralleled, and thus substantially validated, those of the 1978 Federal Judicial Center study.

Finally, the conclusion examines how the pervasive myth of discovery abuse fed into the civil justice reform efforts of the early 1990s and prompted too many cooks to meddle in discovery reform. It explores the notion that federal district courts are “laboratories” for rule reform, and asks whether the CJRA reports and plans will accomplish useful discovery reform. In their rush to solve nonexistent or undocumented problems, the rulemakers have undoubtedly introduced more problems and inequities into what was arguably a good, working discovery system. Instead of “solving” the problem of discovery abuse, the rule reformers have balkanized the rulemaking process, creating new problems of non-uniform discovery procedure, forum-shopping, and confusion. Not only has this rule-reform effort undermined the overarching philosophy of the Federal Rules of Civil Procedure, it also threatens to produce litigation inequities and unfair results.