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. 

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 producing electronic documents far exceed those of paper documents, as lawyers must review each digital file before it is released to the opposing party. 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 no surprise that discovery ranks as one of the top litigation concern for many businesses. 

The federal judiciary is considering changes to alleviate some of the burdens of discovery, but these proposed changes only begin to address the root of the problem. Reasonable rules should include prohibiting the gathering of information until a court has ruled on any motions to dismiss and determined that a case has merit. Parties to a suit should also be required to pay the costs of the information they request, subject to adjustments where appropriate. Ultimately, sensible changes would streamline the discovery process and discourage attorneys from abusing the system to shake down American businesses.


All Results for Discovery

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

February 25, 2015 | Insights

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 »

Tags: Discovery

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

February 24, 2015 | Insights

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 »

Tags: Asbestos, Discovery

In The News Today - January 8, 2015

January 08, 2015 | Insights

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 »

Tags: Discovery, Legal Ethics

In The News Today - December 19, 2014

December 19, 2014 | Insights

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 »

Tags: Discovery, Legal Ethics

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

December 02, 2014 | Insights

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 »

Tags: Discovery

In The News Today - November 4, 2014

November 04, 2014 | Insights

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

Tags: Discovery, Class Actions

In The News Today - October 30, 2014

October 30, 2014 | Insights

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 »

Tags: Discovery, Asbestos, Illinois

Judge Orders All Documents Unsealed in Garlock Bankruptcy

October 17, 2014 | Insights

National Law Journal reports that a federal judge has ruled on Thursday that "all of the evidence that led him to find misrepresentations by plaintiffs" in the Garlock Sealing Technologies asbestos-related bankruptcy case must be unsealed. Read More »

Tags: Discovery, Class Actions, Asbestos

In The News Today - September 29, 2014

September 29, 2014 | Insights

The Department of Justice has emerged as a "formidable banking regulator," writes Thomas P. Vartanian, chairman of the financial institutions practice at Dechert LLP. Read More »

Tags: Discovery

In The News Today - September 25, 2014

September 25, 2014 | Insights

The U.S. Chamber of Commerce has submitted an amcius brief urging the Fifth Circuit not to overturn an order limiting discovery in long-running False Claims Act litigation in which "two whistleblowers allege State Farm Fire & Casualty Co. submitted fraudulent Hurricane Katrina claims to the National Flood Insurance Program", arguing that further discovery by the plaintiffs is unwarranted. Read More »

Tags: Discovery, False Claims Act (FCA), Legal Ethics

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