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 a 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, ILR partners with organizations whose goal it is to educate litigators and judges to ensure that the new discovery provisions are implemented in practice. In addition, 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. In addition, improvements could be made to the process by discovery and is sought from organizations. 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.  

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All Results for Discovery

  1. In The News Today - September 29, 2014

    September 29, 2014 | News and Blog

    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

  2. In The News Today - September 25, 2014

    September 25, 2014 | News and Blog

    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

  3. Justice Catches Up To "Shakedown Specialist" Tort Lawyers

    August 28, 2014 | News and Blog

    According to an editorial in today's Wall Street Journal, plaintiffs' firm Robbins Geller Rudman & Dowd has been ordered to pay sanctions for fabricating evidence from a key witness in their securities fraud lawsuit against Boeing in 2009.... Read More

  4. In the News Today - February 25, 2014

    February 25, 2014 | News and Blog

    With discovery accounting for 50 to 90 percent of litigation costs, the federal Advisory Committee on Civil Rules is considering changes to the Federal Rules of Civil Procedure that would narrow pretrial discovery burdens.... Read More

  5. Kyl: Reforms Needed to Ease Discovery Burden

    January 21, 2014 | News and Blog

    Excessive litigation costs are hurting American companies and scaring foreign companies away from investing in the U.S., writes former Senator Jon Kyl in the Wall Street Journal.... Read More

  6. In the News Today - January 8, 2014

    January 08, 2014 | News and Blog

    Drafters of the Private Securities Litigation Reform Act filed an amicus brief in the Halliburton fraud-on-the-market case, writing that the 1995 law did not address the theory.... Read More

  7. Congress Takes Up Skyrocketing Costs of E-Discovery

    November 06, 2013 | News and Blog

    A Congressional hearing looked at possible reforms that are intended to reduce the time and cost of civil litigation.... Read More

  8. Taking the Sting Out of Discovery: Improving the Federal Rules of Civil Procedure

    October 24, 2013 | Video | Watch

  9. U.S. Chamber Hails Introduction of Exculpatory Evidence Bill in U.S. Senate

    March 15, 2012 | Press Release

    WASHINGTON, D.C. - Lisa A. Rickard, president of the U.S. Chamber's Institute for Legal Reform (ILR), issued the following statement today regarding the introduction of the Fairness in Disclosure of Evidence Act of 2012 in the U.S. Senate. The bill would require that federal prosecutors disclose evidence that is favorable to the defendant in the course of a criminal proceeding; outline when such evidence must be disclosed; and, provide meaningful remedies for violations of the rule.... Read More

  10. The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil Discovery Process

    May 13, 2010 | Research

    This paper examines the escalating crisis in the U.S. civil discovery system and how it can be remedied. Part I discusses the origins and development of civil discovery in the U.S., which sowed the seeds of the current crisis. Part II discusses how electronic discovery has led to increased abuses of the discovery system. Part III discusses prior efforts to reform civil discovery in the U.S. and why they have been largely ineffective. And Part IV discusses potential remedies to the problem, taking particular note of the relative merits of the approaches being adopted in various states, as well as reforms suggested by practitioners, such as the American College of Trial Lawyers.... Read More