Those pieces relevant to this study are included in Appendix B, infra. Legislative materials The Index to Congressional Publications and Public Laws, published by the Congressional Information Service, was searched for hearings, reports or other Congressional documents dealing with discovery. The following headings were checked: "administration of justice," "civil procedure," "courts of the United States," "federal district courts," "Federal Judicial Center, "judicial reform, " and "judicial conference." The index yielded code numbers for potentially relevant material which were then checked in the volume of abstracts accompanying each annual index. An inspection of these abstracts yielded no material relevant to the subject of dissatisfaction with the current discovery rules. In addition, two other sources were checked. First, to double-check the results yielded by searching the Index to Congressional Publications and Public Laws, the Congressional Quarterly Weekly Report was examined; no relevant materials were found. Second, the Congressional Record index was checked through the end of 1974, the year of the last annual cumulative index. No discussion of possible reforms in the discovery rules or of dissatisfaction with those rules could be found in floor debates or in materials entered by Congressmen into the record. Telephone inquiries were made to several staff members of the Senate Judiciary Committee, the House Judiciary Committee and the Criminal Justice Subcommittee of the House Judiciary Committee, which has been given jurisdiction over the Federal Rules of Civil Procedure. These conversations confirmed the absence of relevant Congressional materials. A complete description of the persons contacted may be found in Appendix G, infra. Miscellaneous In order to identify relevant publications not included in the searched indices, inquiries were made of representatives of selected institutions as to whether they knew of any additional material relevant to this study. The institutions contacted include the Administrative Office of the U.S. Courts, the American Bar Association Litigation Section, the American Bar Foundation, the American Law the National Commission for the Review of Antitrust Laws and Procedures, the National Science Foundation, and the Office for Improvements in Justice of the Department of Justice. Appendix G lists the specific individuals who were talked to. Any materials uncovered which were relevant are included in Appendix B. III. COMMON THREADS It is difficult to identify any unifying theme in the post-1969 literature on discovery. While a few of the pieces take an overarching look at discovery practice in general, most select for analysis a single provision or a single aspect of a single provision. Nevertheless, even if there is no single theme to the literature, the materials do have enough in common to allow identification of at least two common threads. The first thread is in a sense a negative one, a reflection of what is not in the materials rather than what is in them. The materials contain no outcry for comprehensive and fundamental revision of the federal discovery provisions. Commentators do not seriously question the notion that the basic framework of pretrial discovery is a desirable one, that Rule 1's goal of securing the "just, speedy, and inexpensive determination of every action" is served by a pretrial discovery scheme that looks, 4 at least in its broadest outlines much like the one we have now. The reforms suggested are aimed at altering the existing system, rather than at abandoning it altogether. The absence of suggestions for truly radical reform may reflect in part the commentators' sense that making such proposals would be futile and in part a conservative "lawyerly" tendency to favor incremental change rather than comprehensive reform. Nevertheless, the literature's seeming acceptance of the Federal Rules' basic discovery structure would appear to have some significance. One can at least conclude that there is a common assumption that, as Professor Moore's treatise notes, "the future holds no retreat from [the rules'] general philosophy of full disclosure." 5 The second thread running through many of the surveyed materials is that the potential for what is termed "abuse" of the discovery process is an increasingly serious problem in the administration of the discovery provisions. While the 1970 amendments to Rule 37 were intended to deal more effectively 6 with problems of abuse, much of the post-1969 literature argues that, as they have actually functioned, the rules have provided inadequate abuse protection. The abuse focused on by the literature is basically of two kinds. First, there is a broad sense that in a substantial number of cases there is "too much" discovery. One writer observes that "[t]he pendulum has swung too far on the side of free use of discovery techniques, and every litigant, attorney, and judge familiar with the pre-trial scene today knows the 7 imbalance must be soon corrected. And an attorney specializing in Title VII job discrimination defense work contends that "[d]iscovery in Title VII cases frequently is so burdensome that employers often weigh the costs of preparing their responses 8 against the price of an early settlement." Several commentators point to complex antitrust cases in which discovery produced hundreds of thousands of documents, cost millions of dollars, 9 and took several years to complete. These commentators argue that that level of discovery, motivated at times simply by a desire to delay resolution of the case or to force the other party to settle, may impede rather than secure the "just, speedy, and inexpensive determination" of the litigation. Although each side tends to focus on the abuses of the other, this sense of "over-discovery" is apparently shared by both plaintiffs' and defendants' bars. So, for instance, presenting the plaintiffs' perspective in a symposium on discovery appearing in the Antitrust Law Journal, Seymour Kurland, a nationally known antitrust lawyer, commented that "we are presently suffering the affliction of too much rather than too little 1,0 discovery. In that same symposium, Peter Byrnes, a defendants' antitrust lawyer, noted that "the scope of discovery sought by plaintiffs has reached staggering and wholly unmanageable 11 proportions." While of course, much of the surveyed literature does not treat the "over-discovery" issue, it may be significant that no writer offers significant opposition to the principle of making increased efforts to deal with problems of "over-discovery. The agreement in the materials that there is a problem of "over-discovery" is not, it should be noted, matched by agreement as to what should be done about the problem. Some commentators 12 |