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.
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. read more...
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.