II. SCOPE AND METHODOLOGY

The study aimed to survey all critical literature on the

federal discovery rules published from January, 1970 to the

Every

(ILP) served as the major "gateway" into materials in scholarly journals. It was examined for the period 1970 through April, 1978. The headings that were searched were "discovery, " "deposition," "interrogatory, "and "pretrial procedure." piece under each of these headings was read to determine whether it expressed dissatisfaction with any element of the current discovery rules or whether it proposed any reform of those rules. Each piece expressing dissatisfaction or proposing reform is briefly summarized in Appendix B of this report. A xerox copy of each piece summarized in Appendix B is on file. at the University of Pennsylvania Law School.

While as might have been expected, there were instances in which it was a matter of interpretation as to whether a given piece "expressed dissatisfaction" with the rules, every attempt was made to err on the side of inclusion in the group of pieces represented in Appendix B. As a matter of completeness and for

potential utility in verification, Appendix C identifies and very

briefly summarizes all pieces under the searched ILP headings

dealing with civil discovery which neither express dissatisfaction nor propose reform.

Three other sources were used to uncover relevant pieces in scholarly legal journals. First, note was taken of materials

cited in the articles included in ILP.

While in the vast

majority of cases these materials were themselves indexed in ILP, a few pieces were not. These were read and, if appropriate, included in the materials represented by Appendix B.

Second,

since there is a lag time of at least a month between an article's publication and its inclusion in ILP, a more current source--the Contents of Current Legal Periodicals--was searched through the issue of June, 1978 for the most recent articles on discovery. Again, where appropriate, these pieces are included in Appendix B. Third, since ILP has not consistently indexed Judicature, a potentially rich source of discovery materials, volumes of that journal for the period 1970-1978 were individually searched.

Bar association journals and publications

To the extent

that state bar association publications are included in ILP, relevant pieces were of course identified in the search described above. However, a substantial amount of bar association material

is not indexed in ILP; not all bar journals are included in its index and of course non-journal materials (e.g., resolutions,

reports, speeches) are not indexed there.

Consultation with,

among others, the staff of the Cromwell Library of the American Bar Foundation, revealed that there is in fact no comprehensive

national index of state bar materials.

Accordingly, it was

decided to send a letter to all state and territorial bar

associations requesting them to forward any materials of whatever sort--journals, speeches, etc.--that they had published which are critical of current discovery procedures or which suggest reform. The body of that letter is reproduced in Appendix D, infra.

As of the date of this Report, responses to the letter

have been received from 17 bar associations.

These responses

are reproduced in Appendix E, infra. Any pieces relevant to this study are appropriately summarized in Appendix B, infra.

Non-legal journals.

Several sources were used to gain

access to materials dealing with discovery in lay journals. First, the Readers Guide to Periodical Literature was searched for the period from 1970 to the present. The headings examined were as follows: "civil procedure," "justice, administration of," "judges," "courts-United States, "procedure," "conduct of court proceedings," "United States-Supreme Court," and "videotape

A second source was the New York Times Index.

Headings

searched there, again from 1970 to the present, were "courts

United States-federal, "courts-United States-general,

"courts-United States-Supreme Court."

" and

Finally, access to lay material was sought through use of "The Information Bank," a computerized journal research service whose data base includes many of the major American newspapers and journals.

The journals included in "The Information Bank"

data base are set out in Appendix F. Access to this system is achieved through a search request using the system's "thesaurus", basically a listing of subject matter headings which the computer can search. After several experimental search requests, a request was arrived at which instructed the computer to search for all articles indexed under both "Federal District Courts" and "Rules of Evidence and Trial

Procedure." The computer responded with abstracts of 53 articles. The printout of that response is on file at the University of Pennsylvania Law School. Of the 53 articles, only one appeared relevant; it was examined and included in the materials indexed in Appendix B.

An effort was also made to identify material on discovery appearing in non-legal scholarly or "quasi-scholarly" journals. Searches were made of the Social Sciences Index (S.S.I.), the Social Sciences Humanities Index (S.S.H.I.), and The Public Affairs Information Services Bulletin (P.A.I.S.B.).

The

S.S.H.I. was searched for the period from January, 1970 through

March, 1974. The S.S.I., which supercedes the S.S.H.I., was
searched from April, 1974 through June, 1978. The following
headings were examined under these two indices: "citizen

suits (civil procedure,)" "civil procedure,
""civil procedure," "conduct of court

proceedings,' "court administration," "courts, "depositions,'

"discovery," "federal courts, federal rules," "interrogatories,"

"judges," "judgments," "judicial process, "justice (administration of)," "pretrial procedure," "procedure (legal)," "Supreme Court," "trial practice," and "videotape."

P.A.I.S.B. was searched for the period from January, 1970

through March, 1978. Headings searched were: "civil procedure,"

"courts,' "judges," "justice (administration of)," "legal procedure," "popular actions," "pretrial procedure," "pretrial procedure," "trials," "United States

(Supreme Court)" and "videotape (court use)."

Books

The card catalogue of the University of Pennsylvania's Biddle Law Library was searched to identify any post-1969 books dealing with discovery, The headings searched were "discovery," "civil procedure," "pre-trial procedure, " and "court rules."

Federal Rules Decisions West's Federal Rules Decisions

Reporter publishes selected presentations at judicial conferences

and the like. The F.R.D. index was searched for pieces on

discovery under the headings of "administration of justice,"

"civil procedure," "discovery," "pretrial procedure, and "rules."