Bone, Robert G. --- "Discovery" [2012] ELECD 96; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 8

Section Title: Discovery

Author(s): Bone, Robert G.

Number of pages: 15

Extract:

8 Discovery
Robert G. Bone


1. Introduction1
Discovery is the process by which parties obtain information from one
another and from otherwise uncooperative third parties. The United
States is unusual among the nations of the world for the extremely broad
scope of discovery it allows (Subrin 1998). For example, the Federal
Rules of Civil Procedure (FRCP) authorize discovery in federal court
cases "regarding any matter, not privileged, that is relevant to the claim
or defense of any party" and state that "relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence" (Rule 26). The FRCP also
furnish a powerful set of discovery tools, including requests for production
of documents (Rule 34); interrogatories (Rule 33); oral depositions (Rule
30); requests for admissions (Rule 36); and physical or mental examina-
tions (Rule 35).
Broad discovery was first introduced into American litigation in 1938
as one of the most important innovations of the Federal Rules of Civil
Procedure. Its purpose, as conceived by the FRCP drafters, was to
resolve cases on the facts and evidence and avoid trial surprise (Subrin
1998). Broad discovery elicited few complaints for the first 40 years of its
operation, but in the 1970s, judges, lawyers, and commentators began to
criticize the system (Brazil 1978). Critics today complain that parties use
broad discovery excessively and also sometimes abusively to impose costs
on their opponents and leverage more favorable settlements.
Although there is anecdotal evidence to support ...