The Pervasive Myth of Pervasive Discovery Abuse: The Sequel

Abstract

As the Advisory Committee on Civil Rules (“Advisory Committee” or “Committee”) once again contemplates revision to the federal civil discovery rules, it is encouraging that the Advisory Committee this time around has commissioned empirical research in advance of possible rulemaking. With that research in hand, three findings are striking in these RAND and Federal Judicial Center (“FJC”) studies. First, the constancy of the data relating to civil discovery is impressive. Second, the studies reaffirm our common sense notions about discovery ― that complex, high-stakes litigation, handled by big firms with corporate clients, are the cases most likely to involve the problematic discovery that skews the discovery debate. Third, there is at best ambiguous evidence concerning the efficacy of mandatory disclosure in courts that have voluntarily adopted the rule. These comments briefly explore the import of the RAND and FJC data for further amendment of the federal discovery rules. As with all proposed rule revision, the Advisory Committee ought to be protective of its rule-making role, given its shared authority with Congress. Thus, prudence counsels against rule amendment unless reform is necessary to fix a problem. Rulemakers ought first to ask, “is there a problem?” If so, they ought next to ask, “can a rule amendment fix it? Will it make things better?” And ― in an unanswerable conundrum ― rulemakers ought to ask if it is possible to anticipate any unintended consequences of their rule reform.