Discovery

Discovery is the pretrial process in which each party in a lawsuit obtains evidence from the opposing party through interrogatories, requests for documents, admissions and depositions. Despite its innocuous-sounding name, discovery has developed into one of the most hostile and burdensome civil litigation procedures in the United States. Originally designed to prevent trials by ambush and to ensure fairness in litigation, the process is now routinely abused by plaintiffs’ attorneys to burden defendants in hopes of forcing them into a quick, costly settlement. read more...

The discovery process was formally established in 1938 through the adoption of the Federal Rules of Civil Procedure. As a practical matter, parties in U.S. cases are able to obtain far more information from one another than virtually anywhere else in the world. However, this freedom comes at a price, and the price is growing levels of discovery abuse. Furthermore, each side has to cover its own costs in producing documents requested by the other side in the lawsuit. 

The most common types of abuse include: (1) demanding excessive amounts of unnecessary information, which imposes significant costs on parties to a suit, and (2) filing motions contesting the bounds of acceptable discovery instead of the merits of the underlying case. As a result, defendants face pressure to settle quickly rather than endure lengthy, burdensome discovery requests.

Discovery abuse has become particularly problematic in recent years due to the advent of electronic data storage. Not only has the volume of documents expanded, but the costs of preserving, storing, and producing typically vast quantities of electronic documents far exceed those of paper documents. This tedious and meticulous process has resulted in some large companies dedicating entire floors to attorneys reviewing documents to comply with requests – at a cost that can easily run into the millions of dollars, all without ever setting foot in a courtroom. It is therefore not surprise that discovery ranks as one of the top litigation concerns for many businesses. 

On December 1, 2015, amendments to the discovery provisions of the Federal Rules of Civil Procedure went into effect. The amendments, which were supported by ILR, provide judicial tools to limit discovery in a way that is proportional to the case and to reduce costs and burdens associated with "over-preservation." While these amendments are a move in the right direction, more can be done. For example, parties to a suit should also be required to pay the costs of the information they request, subject to adjustments where appropriate. While progress has been made, additional sensible changes would streamline the discovery process and discourage attorneys from abusing the system to shake down American businesses.  

Research

Unstable Foundation: Our Broken Class Action System and How to Fix It

October 24, 2017 | Unstable Foundation examines the pervasive flaws afflicting the United States' class action system. Class actions rarely provide meaningful compensation for class members, and are poorly suited to deterring wrongful conduct.

101 Ways to Improve State Legal Systems: A User's Guide to Promoting Fair and Effective Civil Justice - FIFTH EDITION 2017

September 12, 2017 | A user's guide to state legal reforms, providing policymakers with a compendium of options available to foster a sound legal system and promote state economies. This resource also offers a compilation of recently-enacted legal reforms to show how legislators can move the proposals described in the guide from theory into practice.

All Results for Discovery

Unstable Foundation: Our Broken Class Action System and How to Fix It

October 24, 2017 | Research

Unstable Foundation examines the pervasive flaws afflicting the United States' class action system. Class actions rarely provide meaningful compensation for class members, and are poorly suited to deterring wrongful conduct. Read More »

101 Ways to Improve State Legal Systems: A User's Guide to Promoting Fair and Effective Civil Justice - FIFTH EDITION 2017

September 12, 2017 | Research

A user's guide to state legal reforms, providing policymakers with a compendium of options available to foster a sound legal system and promote state economies. This resource also offers a compilation of recently-enacted legal reforms to show how legislators can move the proposals described in the guide from theory into practice. Read More »

101 Ways to Improve State Legal Systems: A User's Guide to Promoting Fair and Effective Civil Justice

Author: Victor E. Schwartz and Cary Silverman, Shook, Hardy & Bacon L.L.P. | September 10, 2015 | Research

101 Ways to Improve State Legal Systems offers some of the many options available to foster a sound legal system. It considers fair and effective measures to improve the litigation process, promote rational liability rules, and rein in excessive awards. Read More »

Law Prof Traces Deceptive Practices in Garlock's RICO Cases to Baron & Budd Law Firm

February 25, 2015 | News and Blog

Legal Scholar Lester Brickman's memo in the Garlock Sealing Technologies bankruptcy traces the roots of "many of the firms Garlock claimed were manipulating their clients' evidence" to Baron & Budd Law Firm. Read More »

Law Professor Memo Asserts Discovery Abuse by Plaintiffs Firms in Garlock Case

February 24, 2015 | News and Blog

A memo submitted by a law professor to federal Judge George Hodges in the Garlock Sealing Technologies' bankruptcy proceedings alleges discovery abuse by plaintiffs' firms. Read More »

In The News Today - January 8, 2015

January 08, 2015 | News and Blog

Two days after the Wall Street Journal ran an editorial about "how former AIG CEO Hank Greenberg is trying to make public potentially exculpatory evidence that the U.S. Justice Department has been keeping under seal," the DoJ announced they will "let the sun shine on the evidence." Read More »

In The News Today - December 19, 2014

December 19, 2014 | News and Blog

Gulf Oil Spill claims administrator Patrick Juneau set a June 8, 2015 deadline for individuals and businesses to claims as part of BP's estimated $9.7 billion settlement. Read More »

Chevron Granted Discovery Against Ecuador's NY-Based PR Firm

December 02, 2014 | News and Blog

Chevron has been granted the ability to conduct discovery regarding the country of Ecuador's $6.4 million public relations contract with Brooklyn, NY firm MCSquared, thanks to a ruling by New York federal judge Lewis Kaplan. Read More »

In The News Today - November 4, 2014

November 04, 2014 | News and Blog

J.P. Morgan says it may lose as much as $5.9 billion "related to litigation in excess of its legal reserves." Read More »

In The News Today - October 30, 2014

October 30, 2014 | News and Blog

In addition to "90 percent of asbestos cases in Madison County" being filed for out of state residents, defense attorneys say one way to shrink what has become a "national asbestos docket would be to reduce the number of cases set for trial during each trial week." Read More »

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