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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  1. Understanding E-Discovery

    July 21, 2008 | Press Release

    In our President's Corner today, we are featuring a guest columnist. Rebecca Love Kourlis is a former Colorado Supreme Court Justice and now serves as the Executive Director at the Institute for the Advancement of the American Legal System, a national organization dedicated to improving the process and culture of the civil justice system. Justice Kourlis will be speaking about e-discovery at the Institute for Legal Reform's "Drowning in Documents" conference on July 30th. The conference will explore the explosion of discovery and its impact on the fairness and efficiency of American courts. Registration is now open for the morning discovery conference or the employment litigation event that afternoon.... Read More