It is our system of obtaining discovery that makes litigation so expensive. And most of it serves no purpose except to make the parties so sick of the lawsuit itself that they might be more likely to consider settlement. I think it is time to clean the house of discovery rules, in a sweeping manner, much as the Federal Rules of Civil Procedure were originally intended to simplify and streamline the litigation process. At least as pertains to discovery, those rules have not worked as intended, and many of the reforms to those rules have only further encrusted them with additional procedure, and additional opportunities to create conflict and delay. For example, sanctions provisions enacted in the 1980’s were intended to reduce the need for discovery motions, but in many cases have only created an impetus for additional motions. The mandatory exchange of information at the outset of the case, an idea promulgated in the 1990’s, was intended to reduce the need for a cycle of requests, responses, and motions, but has often created just a preliminary round of procedure before the good old-fashioned discovery wars start. New rules pertaining to electronic discovery, enacted in the 2000’s, were intended to clarify the applicability of the rules to electronic databases, but does anyone seriously think these rules are going to reduce the cost and complexity of discovery litigation?
More radical reforms should be considered. How much worse would it be if we simply abolished all the discovery rules, and replaced them with a rule which simply states that the parties are entitled to all the discovery they agree upon, and to the extent they cannot reach agreement, they are entitled to all the discovery the court allows. Such a rule would encourage, and in fact require, the parties to work out a master discovery plan at the outset of a case. It would immediately send cases down a path of negotiation instead of litigation, thus supporting the mediation programs that are becoming the norm in most courts. To the extent one or both sides are uncooperative in exchanging information, there would still be no need for serving discovery demands, objections, meet and confer letters, and motions. These activities could all be replaced by relatively simple requests to the court, most of which could be accommodated on forms. The courts, having the experience of decades of discovery practice to guide them, could use this past experience as a guideline in deciding exactly what depositions, document requests, and interrogatories should be permitted in each case. Gamesmanship, blame and sanctions should be avoided in all but the most difficult cases. And even in those cases, the burden on the parties and the courts should be reduced by explicit recognition of the fact that the discovery you get is merely what you can agree on, or in the absence of agreement, what the court allows you to get. All of the complicated rules and procedures we have now for obtaining depositions, document request, and interrogatories, merely obscure that simple truth.
This proposal may be scary to many lawyers, but I would instead view it as liberating. Instead of spending much of our time on the drudgery of preparing requests, responses and motions, and viewing every discovery effort as an opportunity to battle with the other side, we would instead spend our time on either negotiating with the other side to resolve issues, or preparing the case for trial with a minimum of wasteful litigation activities. Maybe more cases would be tried instead of “litigated,” and most cases would still be settled as they are today. Isn’t that what we trial lawyers are supposed to be doing?