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The study aimed to survey all critical literature on the
federal discovery rules published from January,1970 to the
3 present. It was hoped to uncover attitudes toward discovery of
scholars, practitioners, and lay people. Accordingly, not only
scholarly but professional and lay publications were canvassed.
Scholarly legal journals
The Index to Legal Periodicals
(ILP) served as the major "gateway" into materials in scholarly
It was examined for the period 1970 through April,
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
Each piece expressing dissatisfaction or proposing
reform is briefly summarized in Appendix B of this report.
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.
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
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.
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
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.
are reproduced in Appendix E, infra.
Any pieces relevant to
this study are appropriately summarized in Appendix B, infra.
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.
searched there, again from 1970 to the present, were "courts
"courts-United States-general," and
"courts-United States-Supreme Court."
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
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
The computer responded with abstracts of 53
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
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.).
S.S.H.I. was searched for the period from January, 1970 through
The S.S.I., which supercedes the S.S.H.I., was
searched from April, 1974 through June, 1978.
headings were examined under these two indices :
suits (civil procedure,)" "civil procedure," "conduct of court
proceedings," "court administration,"
"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:
"courts," "judges," "justice (administration of)," "legal procedure,"
"popular actions," "pretrial procedure," "trials,
(Supreme Court)" and "videotape (court use)."
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."