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Civil Justice Memo
No. 9  July 1988


The Shock of Discovery

Walter Olson and Brice Peyre

One perennially controversial feature of modern litigation is pretrial "discovery," the process in which parties are allowed to look through each other's files for information relevant to the case. Litigants, especially defendants but also many plaintiffs, complain that years of staff time, and millions of dollars, can be spent complying with demands for information that is irrelevant and invasive of normal expectations of confidentiality. (The recent Cipollone case in New Jersey on cigarette liability featured charges from both sides that discovery procedure was unduly expensive and cumbersome, if not actually abusive.) The very disruptiveness of discovery requests, critics say, makes them a useful offensive tactic whose threat will increase the "settlement value" of a case.

Discovery was among the topics addressed at a conference on civil procedure held April 89 at the Yale Law School under the auspices of that school's Civil Liability Program. (A forthcoming memo will discuss a paper by Professor E. Donald Elliott of the Yale Law School on the problem of expert witnesses, along with comments on that paper from Manhattan Institute Senior Fellow Peter Huber.)

John Setear, a defense analyst at the RAND Corporation, presented a paper analyzing the discovery process in light of military models of escalation and deterrence. Like certain weapons, discovery requests are cheap to deploy but expensive for the opponent who must respond, Setear said. Such weapons are devastating for blackmail purposes because the threat of deploying them is so credible. Yet there is sometimes a force for mutual restraint: the opposing counsel can retaliate with its own wave of discovery requests. Unfortunately, game theory suggests that given the actual structure of litigation, mutual restraint will tend to fail and uninhibited legal warfare will break out.

Judge Jack Weinstein of the Eastern District of New York, commenting on Setear's paper, said in his experience discovery is not greatly abused. The risks of abuse are worth tolerating in pursuing the wider goal of granting plaintiffs full access to necessary information. But in a Louis Harris poll commissioned for the conference, most federal and state judges appeared to differ with him, at least on the latter point. They were asked whether discovery requests launched for various purposes were a "major" cause of "excessive costs." Eightysix percent of the federal judges and 69 percent of the state judges said they thought the use of discovery to "turn over every stone," as opposed to assembling data clearly useful to clients' cases, was a major factor in excessive costs. Seventy-three percent of federal and 64 percent of state judges said the use of discovery "as an adversarial tool to intimidate or raise the stakes for their opponents" was inflicting major costs, while about half of both groups said the use of discovery and motion practices by lawyers "simply to drive up the bill" was a big problem.

Which raises a big question. Judges themselves are the ones who rule on discovery requests. If they find so many abusive, why do they keep approving them? Judge Frank Easterbrook of the Seventh Circuit U.S. Court of Appeals provided some answers in his comments on the Setear paper. It is nearly impossible for anyone but the requester to distinguish the "good" from "bad" requests in practice; without being privy to lawyers' inner thoughts, judges cannot know ahead of time what is expected in good faith to be relevant to a case. Most would rather let some abusive requests slip through than block others that might have been genuine.

Moreover, the vagueness and open-endedness under which cases are now decided are such that almost any information could be relevant to a case. The more judges seek to fine-tune the equities of each case through such devices as multi-factor balancing tests, the more sub-issues will be thrown into the grinder. Take a product liability case where it is alleged, say, that a manufacturer should have used a different type of beverage container. Then it will be relevant to ask what sort of packages are used in other countries. The significance of that data in turn hinges on the possible differences of consumer preferences and beverage markets in those countries. Before you know it, the inquiry has reached the issue of the price of tea in China. And who is to say such data might not make the difference?

Easterbrook noted that in continental civil procedure, courts can proceed one step at a time, allowing an inquiry on issue B only after the plaintiff has proved its case on issue A. In the Anglo-American system, by and large, the whole discovery inquiry precedes the whole trial. The continental system might save on discovery costs; but it may also give the court more power, since the judge must guide the inquiry by deciding which points should come first.

 


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