Opinion
January 1, 1991
ELIMINATING ABUSIVE DISCOVERY THROUGH DISCLOSURE: IS IT AGAIN TIME FOR REFORM? fn_ by THOMAS MENGLER fn__
Although the dust has barely settled on the discovery amendments of the Eighties — arguably making premature any assessment regarding their long-term effectiveness — discovery reform is storming back. The demons being exorcised once again are abuse and excess and their affiliated costs and delays. The proposals come from two eminent sources: the Advisory Committee on Civil Rules, which has published for public comment a number of proposed changes, including modification of the discovery rules (hereinafter "Committee Proposal") and U.S. District Judge William W Schwarzer, Director of the Federal Judicial Center. Both proposals — the Advisory Committee's somewhat modestly, Judge Schwarzer's quite radically — steer away from our present, formal discovery system to one of informal disclosure. Both proposals — the Advisory Committee's subtly and inconspicuously, Judge Schwarzer's expressly and ambitiously — seek to rein in civil litigation's allegedly excessive adversarialness and move to an atmosphere of cooperation.
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence, August 1991 [hereinafter " Committee Proposal"].
Schwarzer, Slaying the Monsters of Cost and Delay: Would Disclosure Be More Effective Than Discovery?, 74 Judicature 178 (December-January 1991) [hereinafter " Schwarzer I"]; Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U.Pitt. L. Rev. 703, 721-23 (1989).
There are other prominent proponents of voluntary disclosure. Congress recently enacted the Judicial Improvements Act of 1990, 104 Stat. 5089, in which it requires each U.S. district court to consider encouraging "cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices." 28 U.S.C. § 473(a)(4). Vice-President Dan Quayle, in a speech to lawyers at the annual ABA meeting in August, endorsed a recommendation by the President's Council on Competitiveness that litigants should engage in a voluntary exchange of key pretrial documents. Wall St.J., August 14, 1991, at B6. See President's Council on Competitiveness, Agenda for Civil Justice Reform in America 16-17 (1991) (recommending disclosure of "core information").
The views expressed are those of the author and do not necessarily reflect the views of the publisher.
Surely no one can quarrel with the soundness of these aspirations. One's nose need not travel too close to the federal courthouse to smell the aroma of litigation abuse. Nor should we be too critical of constructive efforts, during a period of limited resources, to get control of excessive discovery through procedural reform. Nevertheless, it is worth questioning whether the cause of our discovery ills is ineffective rulemaking and whether the cure — if there is any — is more, or different, rules. This author, for one, casts a dissenting vote.
THE COMMITTEE PROPOSAL
The Advisory Committee's Proposal is a package of proposed amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, which were approved by the Advisory Committee at its May 1991 meeting and published for public comment in August. The Committee Proposal would amend the discovery rules, including Rule 26, in a number of ways. Among the most significant changes, Rule 26 would be modified to require a party voluntarily to disclose some basic information, rather than to await a discovery request from the opposing party.
The public comment period expires on February 15, 1992.
In addition to the proposed modification of Rule 26, there are proposed amendments to Rules 30, 31, 32, 33, 34, 36, and 37. Some proposals call for significant change. Rule 30, for example, would be modified to limit to 10 the number of depositions one side could take without leave of court. Committee Proposal, supra note 1, at 34. Rule 33 would be modified to limit to 15 the number of interrogatories a party could submit without leave of court. Id. at 49.
One provision, labeled "Initial Disclosures," would require both the plaintiff and defendant within 30 days after service of defendant's answer (1) to identify all persons reasonably likely to have information that "bears significantly" on the claims and defenses, and to identify the subjects of their information;' (2) to copy or describe all documents, data compilations, and tangible things that are likely to "bear significantly" on the claims and defenses; (3) to compute any category of damages claimed by the disclosing party and to make available for inspection and duplication all documents that support the damages estimate; and (4) to disclose the existence and contents of any insurance agreement that may satisfy all or part of any judgment. In draft Committee Notes, these early disclosures are described as the "functional equivalent of standing interrogatories." The proposal additionally would place the disclosing parties under a continuing duty to supplement their initial disclosures as new, pertinent information became known.
Id. at 15-16. (Including exception, "Unless the court otherwise directs or the parties otherwise stipulate").
Id. at 15-16.
Id. at 27.
Id. at 23. Presently, under Rule 26(e) parties have no duty to supplement discovery, except in rare circumstances. In contrast, proposed Rule 26(e) would require a party to supplement the initial disclosure if "the party learns that the information disclosed is not complete and correct."
A second provision, labeled "Disclosure of Expert Testimony," would require each party, within 60 days of trial, to disclose the contents of its expert's testimony by means of a detailed written report prepared by the expert. The goal of this provision is to replace the "sketchy and vague" information about experts currently obtained by interrogatories pursuant to Rule 26(b)(4)(A) with a (1) complete statement of all opinions to be expressed by the expert and the reasons for those opinions; (2) the data or other information relied upon by the expert in forming the opinions; (3) any exhibits to be used as a summary of or support for such opinions; (4) the qualifications of the expert; and (5) a listing of any other cases in which the expert has testified at trial or in a deposition within the prior four years.
Id. at 29. (advisory committee's note) ("The information disclosed under the former rule in answering interrogatories about the `substance' of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of a witness.") See also Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part II, An Empirical Study and a Proposal, 1977 Ill. L. Forum 169; Schwarzer, Guidelines for Discovery, Motion Practice and Trial, 117 F.R.D. 273, 276 (1987) ("[E]xperts who are prospective witnesses are normally produced for deposition by the opposing party as a matter of course").
Committee Proposal, supra note 1, at 16.
A third provision, labeled "Pretrial Disclosures," would require an even later, eleventh-hour disclosure. A party would be expected within 30 days of trial (1) to disclose the names of all witnesses the party expects to call at trial and those whom the party may call if the need arises; (2) to designate the witnesses whose deposition testimony is expected to be presented; and (3) to identify all documents, including summaries, "separately identifying those which the party expects to offer and those which the party may offer if the need arises."
Id. at 17.
On their face, these proposed reforms may appear unobjectionable and, indeed, they seem to fit that description at least in part. The provision calling for disclosure of an expert's report, for example, may save time and money by occasionally obviating the need to depose the other side's expert; under the current rules, given the uselessness of the information revealed in response to a Rule 26(b)(4)(A) interrogatory, deposing the other side's expert is nearly always necessary. The provision calling for a substantial pretrial disclosure also seems useful because it simply codifies the disclosures routinely required a few weeks before trial by the local pretrial order of most district courts. Courts presently employing the pretrial order in this way do so to streamline the trial, and the results have been satisfactory. Standardization of this practice is a beneficial modification of the Federal Rules.
One commentator, Professor Linda Mullenix, describes an earlier draft's similar propos als as a "harmless accretion" and as "totally innocuous." See Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. Rev. 795, 798 (1991).
See supra note 10.
The initial disclosure provision, however, is more troubling. One reason is that the provision may be largely ineffectual. To the extent that the initial disclosure is designed to produce more quickly the "functional equivalent" of answers to first-wave interrogatories, it is doubtful that this will be accomplished except in the most routine cases. The information required to be disclosed initially is often not within even the conscientious litigator's possession so early in the litigation. In many cases, a full informative disclosure may come only later in the litigation, as it currently does under our formal discovery system. The delays that we presently find in connection with interrogatories should still remain under an initial disclosure rule.
To the extent that the initial disclosure provision is designed to provide highly significant information to the litigants at some early point in the litigation, even if not within 30 days of the answer, that also is a dubious goal. Taking the Advisory Committee at its word, if the initial disclosures are indeed the functional equivalent of answers to interrogatories, one would expect to receive from those disclosures functionally equivalent information. One commentator, Magistrate Judge Wayne Brazil, himself a member of this Advisory Committee, has recounted that many litigants and judges regard interrogatories as "useless because any lawyer who can't answer interrogatories without giving [an] opponent useful information is not worth his salt." This remark hopefully is overstatement, and perhaps some rudimentary information will be exchanged through the informal disclosure procedure. But the point remains that the shenanigans currently played with the interrogatory device, sometimes even with requests for the most basic information, may continue to be played in equal measure with an initial disclosure procedure. It may be unrealistic to expect that parties will be more forthcoming under the Committee Proposal's disclosure scheme than they currently are when presented with written interrogatories.
Brazil, View From the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 Am. B. Found. Res. J. 219, 233 (another lawyer expressing widely shared belief that "any good attorney can shadowbox an interrogatory").
See Mullenix, supra note 13, at 817 n. 15 (recounting one attorney's skepticism about an informal disclosure rule, that "the efficacy of the rule depended primarily on the opposing lawyer. . . . If the other lawyer wants to cooperate, then the rule works").
A second reason for concern is that the initial disclosure provision, along with the ongoing duty to supplement the initial disclosure, may produce satellite litigation over the adequacy of the initial disclosures and the timeliness of any necessary supplementation. For example, one issue that will undoubtedly produce some litigation is what it means for information to "bear significantly" on a claim or defense. Designed to reduce costs and delay, the initial disclosure provision could be employed to increase those costs.
In a joint submission to the Advisory Committee, the defense bar — represented by the Lawyers for Civil Justice and the Product Liability Advisory Council — raised this concern as well as others, stating that "the disclosure requirement is likely to lead to overdisclosure, increased discovery, new disputes regarding disclosure, more court involvement in resolution of such disputes; and more delay, without any concomitant systemic benefits." Defense Bar Opposes Proposal to Amend Federal Discovery Procedure, 6 Corp. Counsel Weekly (BNA) No. 32, at 1 (Aug. 7, 1991).
A third reason should give even greater pause: the initial disclosure provision may encourage judges to narrow the scope of a plaintiff's discovery options. Requiring a plaintiff, before it engages in any formal discovery, to disclose voluntarily the gist of all it knows may cause a district judge, to limit, the scope of a plaintiff's discovery to those theories and issues for which the plaintiff already has substantial support. Such a development would mark a significant and unacceptable departure from the Federal Rules' philosophy of liberal discovery and liberal pleading.
A court could restrict discovery in two ways: first, as part of the court's authorized management of formal discovery; or, second, in response to a defendant's summary judgment motion. In the second circumstance, the court might postpone ruling on defendant's summary judgment motion to give the plaintiff an opportunity to engage in some limited discovery. See Fed.R.Civ.P. 56(f), In both instances, the scope of discovery in part might be determined by plaintiffs initial disclosure.
See Friedenthal, A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure, 69 Cal. L. Rev. 806, 813 (1981) ("It would be a sad irony if reforms ultimately prevented the less affluent litigant from presenting a valid case that without discovery he could not prove."); Hazard, Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. Penn. L. Rev. 2237, 2243-44 (1989) ("Liberal discovery is a product of citizen-consumer orientation of public policy in the past fifty years, not the misguided predilection of the committee that drafted the Federal Rules").
See Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 56 Colum. L. Rev. 433 (1986).
One may object that even if the narrowing of formal discovery's scope is a likely result of the initial disclosure provision, defendants, as well as plaintiffs, will bear similar consequences, since both sides typically engage in formal discovery. That much is correct, but defendants and plaintiffs will not suffer equally. On the whole, plaintiffs have a greater need for formal discovery than defendants both because plaintiffs typically bear the burden of proof in a case and, hence, have a greater need for evidentiary support, and because, in certain kinds of cases, the critical information is largely under defendant's possession or control. A discovery reform that encourages district judges to restrict the scope of discovery at an early stage will disparately affect plaintiffs.
Friedenthal, supra note 19, at 812; Schwarzer I, supra note 2, at 182 (acknowledging that in civil rights and personal injury cases, the critical information is largely in the hands of defendants).
One needs, however, to be cautious about overstating this concern. Nothing in the Committee Proposal itself or the notes expressly states or implies that the initial disclosure provision is intended to limit in any substantial way the scope of formal discovery, much less to narrow the scope of plaintiff's discovery. Nevertheless, unlike the current system in which there is no order to the process of formal discovery and judges often are reluctant to step in too early to affect the order, the Committee Proposal contemplates an order, one in which the claimant must lay down its support at a case's inception before engaging in formal discovery. Under that scenario, some cause for concern about plaintiff's scope of discovery is indeed warranted. Moreover, given as noted above that the benefits of initial disclosure are likely to be minimal, the possibility that moving to an initial disclosure scheme will produce any undesirable costs whatsoever, however slight, should lead the Advisory Committee to resist such a change. Perhaps, if there is to be experimentation with voluntary disclosure schemes, that experimentation should come through a select number of local district courts; from the bottom up, rather than from the top down. Alternatively, the Advisory Committee should make clear in its Committee notes that courts, in establishing the parameters of formal discovery, should not look exclusively to or place undue emphasis on the parties' initial disclosures.
It should be noted, however, that other proposed amendments do call expressly for limits on the amount of discovery. See supra note 5.
The Advisory Committee's proposed amendment of Rule 26(d) would generally require that a party make its initial disclosure before engaging in any formal discovery. See Committee Proposal, supra note 1, at 22. (Proposed Rule 26(d))
Indeed, one could read the proposed amendments to Rule 26 as part of a package of amendments, including the proposed amendments to Rules 16 and 56, whose overreaching goal is implementation of a policy of early merits resolution.
Already, experimentation with voluntary disclosure has begun at three district courts. See Mullenix, supra note 13, at 814-20. Moreover, Congress, though its enactment of 28 U.S.C. § 473(a)(4), has urged each district court to consider implementing "cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices." Empirical studies of those districts that choose to implement voluntary disclosure schemes ultimately may corroborate or dispel the concerns expressed in this article.
A third concern about the initial disclosure scheme is what it might portend for the future. The Committee Proposal, although it does not purport to be the first step of a major overhaul, may nonetheless be a preview of coming attractions. The Advisory Committee could be testing the waters, assessing the public's general amenability to a disclosure system, in hopes that eventually the formal discovery system will be systematically replaced by a comprehensive disclosure scheme. This is Judge Schwarzer's proposal for reform, and it carries with it, not only the problem described above, but other more significant objections.
The only evidence for this remark is that the draft Committee Notes cite articles by Judge Schwarzer and Magistrate Judge Wayne Brazil in which they advocate comprehensive disclosure schemes. See Committee Proposal, supra note 1, at 26-27.
JUDGE SCHWARZER'S PROPOSAL
In contrast to the more modest Committee Proposal, Judge Schwarzer's proposed measure is revolutionary. Unlike the Committee Proposal — which regards the initial disclosure as merely a prelude to traditional formal discovery — Judge Schwarzer's proposal contemplates a disclosure scheme that sharply restricts and substantially replaces formal discovery. Indeed, in Judge Schwarzer's scheme, a litigant would be able to engage in formal discovery only if she first were to obtain a court order, and then only after demonstrating to the court that she held a "reasonable basis for asserting the claim or defense" and had been unable to obtain the equivalent information through her own informal investigation or the other side's voluntary disclosures.
Schwarzer I, supra note 2, at 180-81.
In formal discovery's place, Judge Schwarzer would establish a disclosure scheme in which the plaintiff, at the time of filing the complaint, would be required to submit to the defendant (1) copies of all material documents and things; (2) the names and addresses of all persons believed to have material information; and (3) statements informing the opposing party of the material information possessed by persons under plaintiff's control. Defendant, at the time of filing an answer or pre-answer motion going to the merits, would be required to submit the same type of information to the plaintiff. As under the Committee Proposal's initial disclosure scheme, both sides would be under a continuing duty to disclose material information as it became known. Judge Schwarzer defines "material information" as "bearing on the outcome of the action," which, in his view, "would impose a more stringent requirement than the `reasonably calculated to lead to the discovery of admissible evidence,' standard now in effect."
Id. at 180.
Id.
Id. at 181.
The impetus for Judge Schwarzer's reform measure is his perception that the present discovery rules, including the 1980s' amendments, have failed inasmuch as "discovery, as it is now conducted, spawns some abuse and, more importantly, is prone to overuse leading to expense and delay." Moving from discovery to disclosure, he believes, will reduce excess by substantially curtailing the amount and scope of discovery. A disclosure system will reduce abuse by promoting cooperation among lawyers; in those cases in which there is contentiousness, a disclosure system will allow the district court to focus its energies more effectively. "[J]udicial intervention should become far more productive," Judge Schwarzer contends. "Rather than referee largely pointless discovery disputes, the judge will be involved in defining and narrowing issues and supervising discovery programs in the concrete context of the prior disclosure, which should bring about earlier and more economical dispositions of cases."
Id. at 178.
Id. at 182.
However lofty its ambitions, Judge Schwarzer's proposal nonetheless is problematic. One reason is that his plan to reduce discovery excess by reducing the scope and amount of discovery hits much more than what should be its intended mark. Judge Schwarzer's proposal, like virtually all of the Federal Rules of Civil Procedure, treats all cases and all litigants generically. But discovery excess and abuse, although serious and debilitating when it occurs, is apparently not as pervasive a problem as Judge Schwarzer would have us believe. Moreover, the available empirical evidence suggests that most, though certainly not all, discovery problems occur in certain types of cases: complex, big dollar suits. A reform that restricts discovery across the board may fail to effect an appropriate cure, one that is tailored more narrowly to fit the particular disease.
See, e.g., P. Connelly, E. Holleman M. Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery 28 (1978) (Federal Judicial Center study revealing that 51.7% of the 3.114 cases studied had no discovery requests, that another 20.6% had two or fewer requests, and that in 95.1%, ten or fewer discovery requests existed); Schroeder Frank, The Proposed Changes in the Discovery Rules, 1978 Ariz.St.L.J. 475, 476-78, 492 (similar conclusions); Trubek, Sarat, Felstiner, Kritzer, Grossman, The Costs of Ordinary Litigation, 31 UCLA L. Rev. 72, 89 (1983) (1978 study of 1649 cases in state and federal courts, revealing no evidence of discovery in over half the cases, and "[r]arely did the records reveal more than five separate discovery events.") Further the Advisory Committee on Civil Rules in 1979 commented that "abuse of discovery, while very serious in certain cases, is not so general as to require such basic changes in the rules that govern discovery in all cases." 80 F.R.D. 332 (1979). See also Flegel, Discovery Abuse: Causes, Effects, and Reform, 3 Rev. of Litigation I, 11 (1982) (noting that District Judge John C. Coughenour, Western District of Washington, claimed to have only "five out of four hundred fifty cases that involve honest-to-God abuse").
See Brazil, supra note 15 (study finding that world of discovery is composed of two subworlds: smaller cases with little or no discovery abuse, and larger cases where most of the abuse occurs); Trubek. Sarat, Felstiner, Kritzer, Grossman, supra note 33 (similar conclusions). See also Pollack, Discovery — Its Abuse and Correction, 80 F.R.D. 219, 222 (1978) (noting that abuse is not found in the ordinary case).
Dean Friedenthal raised this concern after a previous round of reform: "If discovery abuse is confined to a relatively few cases, a call for across-the-board limitations is in reality no more than a covert call for a fundamental policy change that would deter litigants from obtaining vital information, in the many cases where no abuse exists." Friedenthal, supra note 19, at 813.
A second, more serious problem is that Judge Schwarzer's disclosure scheme is not only untargeted; it may also be mistargeted. Like the Advisory Committee's Draft, Judge Schwarzer's proposal, if eventually adopted, would affect plaintiffs more than defendants. It would do so by reducing the amount and scope of disclosed information in at least two ways. First, as Judge Schwarzer himself explains, "[b]y shifting the burden of persuasion from the party objecting to discovery to the party seeking it, it would reduce the amount of discovery." Second, by defining the disclosure requirement in terms of "materiality," the proposal would reduce the amount and scope of disclosure and discovery by establishing a more stringent standard than the present scope of discovery under Rule 26(b)(1). Because, as noted above, plaintiffs typically — though certainly not always — have a greater need than defendants for obtaining information from the other side, a reduction in the amount and scope of information disclosed will disproportionately injure plaintiffs.
Schwarzer I, supra note 2, at 183.
See Friedenthal, supra note 19, at 815-18 (contending that narrowing scope "necessarily narrows the range of facts that the plaintiff will be allowed to discover and to prove at trial").
This likely consequence of Judge Schwarzer's proposal is particularly troublesome because there is as yet no empirical evidence to suggest that plaintiffs as a class of litigants engage in discovery excess, delay, and abuse significantly more than defendants do — that the "discovery problem" is peculiarly or primarily a "plaintiff problem." Indeed, some would contend that empirical evidence and economic theory indicate the contrary, at least with respect to some types of discovery abuse: defendants have a greater economic incentive to delay the payment of damages through delays and abuses associated with discovery. By making plaintiffs bear the brunt of the discovery reduction burden, Judge Schwarzer's proposal might target too heavily one class of litigants.
See Thornburg, Interlocutory Review of Discovery Orders: An Idea Whose Time Has Come, 44 S.W. L.J: 1045, 1064-65 (1990) (discussing and citing literature indicating that defendants have greater incentive than plaintiffs to engage in discovery abuse).
Judge Schwarzer has anticipated these criticisms by conceding that some essential information, which otherwise would be discoverable under the current formal discovery rules, may occasionally not be disclosed under his scheme. "But the question must be asked," he appropriately counters, "whether the marginal value of preventing such occasional failures is worth the great costs of unrestrained discovery." No facile response should follow that challenging question, and perhaps some day we will decide that Judge Schwarzer's route is the only acceptable alternative to excessive and abusive discovery. But before we do so, we should estimate realistically the frequency of these "occasional failures" to disclose or discover pertinent information.
Schwarzer I, supra note 2, at 182.
Id.
There is some reason for thinking that such failures might be more than occasional. Redefining discoverable information in terms of "materiality" by itself may sharply and unreasonably restrict the flow. Further, under Judge Schwarzer's scheme, the incentive for litigants to withhold harmful information would be at least as great, and probably greater, than under our present discovery rules. Under the present discovery system, ongoing formal discovery through a variety of avenues — interrogatories, requests for document production, and depositions — is calculated to make it more difficult for litigants to conceal pertinent information. Formal discovery begins immediately after a suit is filed and proceeds — even under today's climate of case management — largely unencumbered by court interference or restrictions. Persistent effort-critics like Judge Schwarzer might call it excessive effort — frequently pays off. Given one side's arsenal of weapons to discover pertinent information, the other side — even if it is otherwise inclined to evade or conceal — may decide that the cost of possible later disclosure outweighs the benefit of concealment.
Under Judge Schwarzer's proposal, because the opportunities for employing an arsenal of discovery weapons is greatly limited and only upon court order, the incentive to conceal should be greater. He all but admits as much by acknowledging that in shifting the burden of persuasion from the party objecting to discovery to the party seeking it, less will be discovered. With a voluntary disclosure philosophy that presumptively cuts against later use of formal discovery, one might be concerned that litigants will be encouraged to appear to be forthcoming at the disclosure stage and thereby minimize the likelihood of formal discovery that might later uncover some concealed secret.
Judge Schwarzer's proposal thus might well lead to a substantial decrease in the amount of pertinent information disclosed, which might for no ostensibly good reason disparately affect the class of plaintiffs. Moreover, such an overall decrease of information in all types of civil cases — big and small — may come in an environment as conducive to abuse as the present one. Why will Judge Schwarzer's move from discovery to disclosure correspondingly move lawyers from excessive adversarialness to mutual cooperation? Judge Schwarzer believes this will occur, in part, because judges who are now "too busy" or "not interested" in discovery will have "no place to hide." Judges will be more productive because they will be "defining and narrowing issues and supervising discovery programs in the context of the prior disclosure," rather than refereeing "largely pointless discovery disputes." Unfortunately, he does not explain this speculation; and it is not intuitively obvious why refereeing a voluntary disclosure is any easier than refereeing a discovery dispute, or why judges who presently have no time for or are disinterested in the management of a complex case's discovery will find time and become intrigued by disclosure conferences.
Id. at 180.
Id. at 182.
Id.
REPLACING RULEMAKING WITH RESOURCES
It is far easier, of course, to criticize these two challenging proposals than to propose and defend one's own solution. And, although there may be substantial disagreement about the scope and severity of the discovery problem, there surely is a problem. At least in this instance, however, the panacea for the current discovery malaise should not be another round of rulemaking. Noone yet has made a compelling case that the Eighties' reforms as written are fundamentally misguided. Judge Schwarzer, for instance, imparts only a glancing blow when he summarily remarks, "They have largely failed to accomplish their purpose and the discovery problem persists." More than that should be required to cast aside reforms only a few years old.
Id. at 178.
One can agree with Judge Schwarzer's observation that the discovery rules are not working in many cases, but disagree with his view of the cause and cure. In a sense, those rules — in at least some cases — have surely failed, but not because of sloppy drafting or bad theory. Rather, the predicament is one of insufficient enforcement by judges who, in Judge Schwarzer's own words, have no time for and, therefore, no interest in discovery management.
We can hardly fault the Advisory Committee and Judge Schwarzer for trying to work with the crumbs that they have been provided. Neither the Advisory Committee nor the Director of the Federal Judicial Center can do much in the way of providing additional resources, except to lobby for relief. Nor can we fault the federal judiciary for ineffective management of discovery in those cases that need it. Federal judges, given the expansion of their criminal docket, speedy trial constraints, and the demands of the Sentencing Guidelines, have little time to devote to the civil docket generally and even less to the dregs of that docket, discovery management of the big civil case.
The issue then is whether we can continue to try to force the civil docket, along with its "discovery problem," down an unacceptably small and increasingly smaller hole, and, at the same time, continue to expect publicly acceptable results. Judge Schwarzer's proposal and, to a more modest extent, the Advisory Committee's Proposal are conscientious attempts to create something from nothing, to provide for the efficient exchange of relevant, factual information, while taking into account the limited resources of the federal courts. But, as this essay has contended, there may be substantial costs in that ostensibly easy exchange.
A sounder approach, more consistent with the Federal Rules' commitment to merits resolution, is to put down the rulemaking pen and to provide the necessary resources to manage formal discovery effectively. There are, of course, two ways to bring more resources to bear. One route is to decrease substantially the federal court's docket, by, for example, effectively abolishing everyone's whipping boy, diversity jurisdiction. Another, undoubtedly costlier route is to provide more Article III and magistrate judges. In the long run, giving big sticks, which the Eighties' reforms did, to more judges — or to judges who have more time because of a diminished docket — may fundamentally alter the litigation conduct of the Bar and bring about the mutual cooperation and cost-savings that are the praiseworthy aspirations of the Advisory Committee and Judge Schwarzer.
The Federal Courts Study Committee advocates this approach to the problem of an overburdened judiciary. See Report of the Federal Courts Study Committee 38-39 (April 2, 1990). Although abolishing diversity jurisdiction is strongly supported by most academics and judges, see, e.g., Kramer, Diversity Jurisdiction, 1990 BYU L. Rev. 97, Rowe; Abolishing Diversity Jurisdiction: Positive Side Effects and Potential for Further Reforms, 92 Harv. L. Rev. 963 (1979), it is strongly opposed by most lawyers and hence stands little chance of political success.
The Federal Courts Study Committee opposes this approach, principally because substan tially increasing the number of federal judges might result in a decrease in the judiciary's prestige; a federal judge would become a "tiny cog in a vast wheel," and attracting qualified people would, therefore, be more difficult. Report of the Federal Courts Study Committee, supra note 40, at 7. It is possible, however, that losing people who are attracted to a federal judicial position because of its prestige might improve, not lessen, the quality of the applicant pool.