August 01, 2012

From the Bench: Fixing Discovery: The Judge's Job

Our discovery system can be fixed by judges who adjudicate discovery disputes informally and promptly.

Hon. James G. Carr

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We again hear the calls: Rein in the costs of civil litigation generally and pretrial discovery in particular. Many of these calls originate with a study that the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System conducted in 2008.

Together, they issued an interim report in August 2008, summarizing the survey process and results, and a final report in March 2009, containing “Proposed Principles” and “Recommended Action.”

The final report contains interrelated proposals for pleading and discovery that, if adopted, would substantially transform the one and revolutionize the other. Proponents claim that repudiation and abandonment of the notice pleading and open discovery policies underlying the Federal Rules of Civil Procedure since 1938 are necessary to fix a “broken” discovery system.

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