Federal Judicial Center

Discovery Problems in Civil Cases Federal Judicial Center

The proper scope of discovery and the effect of discovery on the costs of litigation in civil cases have been controversial issues since the concept of notice pleading was introduced. The modern role of discovery, effectuated in the 1938 Federal Rules of Civil Procedure, continues to draw detractors and supporters. Surprisingly, there is little difference between the arguments of the 1930s and those of the 1970s. Nevertheless, these arguments have taken on new dimensions in recent years because of the increasing costs of litigation and the fact that discovery accounts for a substantial portion of the costs of civil litigation. These concerns prompted our study. Although preliminary planning for research projects on discovery had started in 1975, the strongest impetus for Federal Judicial Center research was the so-called Pound Revisited Conference of 1976, at which discovery was highlighted as a particularly serious cost problem. By the summer of 1978, published Center research concerning discovery included a statistically based study of cases in six districts and a study that surveyed and analyzed all critical literature on the federal discovery rules published since January 1970 (the year of the last major revision of the federal discovery rules). The instant project is one of the Center 's continuing studies of the operation of discovery. The Center's first discovery report was--as noted above--a statistical study. Although statistics provide information that illuminates or defines problems, some questions are. more usefully addressed through case studies. The present study involves such questions.