Confronting civil discovery's fatal flaws

Minnesota Law Review

Volumn 84, Issue 3, 2000, Pages 505-587

  Beckerman, John S ^a  

^a NONE

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EID: 0347420127     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (405)

1. See 8 CHARLES ALAN WEIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2001 n.21 (3d ed. 1994 & Supp. 1999).
2. See Rya W. Zobel, Foreword to THOMAS E. WILLGING ET AL., FEDERAL JUDICIAL CTR., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS AND PROPOSALS FOR CHANGE: A CASE-BASED NATIONAL SURVEY OF COUNSEL IN CLOSED FEDERAL CIVIL CASES at i, v (1997) [hereinafter FEDERAL JUDICIAL CENTER REPORT];
3. Edward H. Cooper, Discovery Cost Allocation: Comment on Cooter and Rubinfeld, 23 J. LEGAL STUD. 465, 465 (1994).
4. These range from the view, on one extreme, that discovery abuse is rampant, see, e.g., RALPH NADER & WESLEY J. SMITH, NO CONTEST: CORPORATE LAWYERS AND THE PERVERSION OF JUSTICE IN AMERICA 102 (1996), to that on the other, that widespread discovery abuse is fantasy rather than reality.
5. See, e.g., Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemak-ing, 46 STAN. L. REV. 1393 (1994).
6. See Judith A. McKenna & Elizabeth C. Wiggins, Empirical Research on Civil Discovery, 39 B.C. L. REV. 785 (1998);
7. Charles W. Sorenson, Jr., Disclosure Under Federal Rule of Civil Procedure 26(a) - "Much Ado About Nothing?", 46 HASTINGS L.J. 679, 706-14 (1995). Both contain useful surveys of results of earlier studies.
8. See FEDERAL JUDICIAL CENTER REPORT, supra note 2.
9. See JAMES S. KAKALIK ET AL., RAND INST. FOR CIVIL JUSTICE, DISCOVERY MANAGEMENT: FURTHER ANALYSIS OF THE CIVIL JUSTICE REFORM ACT EVALUATION DATA (1998) [hereinafter RAND REPORT].
10. See FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 2, 21;
11. RAND REPORT, supra note 6, at xxvii. This finding mirrors that of a 1978 Federal Judicial Center Study that the incidence and volume of discovery tended to be high in securities, trade regulation, tort, intellectual property, admiralty and contract cases, and that discovery volume was likely to be high in product liability, patent and franchise contract cases.
12. See PAUL R. CONNOLLY ET AL., FEDERAL JUDICIAL CTR., JUDICIAL CONTROLS AND THE CIVIL LITIGATIVE PROCESS: DISCOVERY 43-44 (1978), cited in McKenna & Wiggins, supra note 4, at 791.
13. See Kathleen L. Blaner et al., Federal Discovery: Crown Jewel or Curse?, 24 LITIG. 8, 10 (1998). The gradual raising of the jurisdictional minimum amount in controversy requirement in diversity cases in federal courts from $3,000 to $10,000 in 1958, to $50,000 in 1988, to $75,000 in 1996, closing the door on diversity cases for small amounts, has tended to ensure that diversity cases brought today mostly involve significant financial stakes. See 28 U.S.C.A. § 1332 commentary on the 1996 amendment (West Supp. 1999).
14. See RAND REPORT, supra note 6, at xxii;
15. Paul V. Niemeyer, Here We Go Again: Are the Federal Discovery Rules Really in Need of Amendment?, 39 B.C. L. REV. 517, 523 (1998).
16. These results largely confirm the perceptions and conclusions reached by Wayne D. Brazil in his 1980 American Bar Foundation study. See Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 789, 869-74 [hereinafter Brazil, Civil Discovery];
17. Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 AM. B. FOUND. RES. J. 217, 222-35.
18. RAND REPORT, supra note 6, at xv.
19. See John D. Shugrue, Identifying and Combating Discovery Abuse, 23 LITIG. 10, 12 (1997) ("Finding a litigator who will readily confess to having abused discovery is equivalent to the proverbial an[d] futile search for the needle in the haystack.").
20. But see MARK PERLMUTTER, WHY LAWYERS (AND THE REST OF US) LIE AND ENGAGE IN OTHER REPUGNANT BEHAVIOR 11, 28, 38 (1998) (describing experiences of unethical conduct).
21. I have not attempted to exclude criminal prosecutions in which opinions referred to discovery disputes or to correct these numbers for other possible type I error, that is, false positives. Thus, if a judge wrote, "Pretrial litigation was remarkably free of any discovery disputes," such a case would still appear in the numbers in Table 1. My assumption, however, is that judges would rarely include the words "discovery dispute" in a reported opinion unless pretrial litigation actually contained a discovery dispute that the judge thought noteworthy.
22. See Arthur R. Miller, The Adversary System: Dinasaur or Phoenix, 69 MINN. L. REV. 1, 21 (1984).
23. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982).
24. See Dondi Properties Corp. v. Commerce Sav. and Loan Ass'n, 121 F.R.D. 284, 286 (N.D. Tex. 1988) (en banc) ("With alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers. Judges and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction."); ROBERT E. KEETON, JUDGING 182 (1990) (stating that respect for authority in the courtroom and elsewhere is less pronounced and pervasive in the 1990s than in the 1930s).
25. See Shugrue, supra note 11, at 10-11.
26. See, e.g., ACF Indus. Inc. v. EEOC, 439 U.S. 1081, 1087 n.6 (1979) (Powell, J., dissenting from denial of certiorari) (quoting letter from Hon. Griffin B. Bell that in his experience as a judge, practicing lawyer and Attorney General of the United States, "the scope of discovery is far too broad").
27. See Robert D. Cooter & Daniel L. Rubinfeld, An Economic Model of Legal Discovery, 23 J. LEGAL STUD. 435, 452-54 (1994) [hereinafter Cooter & Rubinfeld, An Economic Model of Legal Discovery];
28. Robert D. Cooter & Daniel L. Rubinfeld, Reforming the New Discovery Rules, 84 GEO. L.J. 61, 63 (1995) [hereinafter Cooter & Rubinfeld, Reforming the New Discovery Rules].
29. See Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 511 (1994);
30. E. Norman Veasey, Making it Right: Veasey Plans Action to Reform Lawyer Conduct, BUS. L. TODAY, Mar./Apr. 1998, at 42, 42-43.
31. See WILLIAM A. GLASER, PRETRIAL DISCOVERY AND THE ADVERSARY SYSTEM 154-55 (1968);
32. Nathan M. Crystal, Limitations on Zealous Representation in an Adversarial System, 32 WAKE FOREST L. REV. 671, 726-31 (1997);
33. Helen H. Stern Cutner, Discovery - Civil Litigation's Fading Light: A Lawyer Looks at the Federal Discovery Rules After Forty Years of Use, 52 TEMP. L.Q. 933, 955-56 (1979);
34. Barbara J. Gorham, Note, Fisons: Will It Tame the Beast of Discovery Abuse?, 69 WASH. L. REV. 765, 782-83 (1994).
35. See infra pp. 537-43. In August 1998, the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published for public comment a Preliminary Draft of Amendments to the Federal Rules of Civil Procedure and Evidence. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE (1998) [hereinafter PRELIMINARY DRAFT].
36. The key changes proposed for the Federal Rules of Civil Procedure as approved by the Judicial Conference of the United States include: scaling back the automatic disclosure provision of Rule 26(a) and eliminating the current authorization for districts to opt out; modifying the scope of discovery by striking "relevant to the subject matter involved in the pending action" from the definition of scope in Rule 26(b)(1) and substituting "relevant to the claim or defense of any party"; limiting the length of depositions in Rule 30(d)(2) to seven hours unless otherwise authorized by the court or stipulated by the parties and the deponent; and adding a provision to Rule 34(b) that makes explicit courts' power to limit excessive discovery by allowing courts to condition discovery on payment of part or all of the responding party's expenses by the requesting party. See id. at 34-35, 41-42, 60, 65-66; see also Proposed Amendments to the Federal Rules of Civil Procedure 81-82 (last modified Aug. 9, 1999) 〈http://www.uscourts.gov/rules/propcivil.pdf〉.
37. See infra pp. 540-41.
38. See infra pp. 564-69 & note 250.
39. See Judicial Conference of the United States, Procedure in Anti-Trust and Other Protracted Cases, reprinted in "Short Cuts" in Long Cases: A Commentary on the Report Entitled Procedure in Anti-Trust and Other Protracted Cases, 13 F.R.D. 41, 83 (1951);
40. James Alger Fee et al., Proceedings of the Seminar on Protracted Cases for United States Judges, 23 F.R.D. 319 passim (1958);
41. Irving R. Kaufman, Judicial Control over Discovery, 28 F.R.D. 111, 111-16 (1960);
42. Irving R. Kaufman, The Philosophy of Effective Judicial Supervision over Litigation, 29 F.R.D. 207, 213 (1961);
43. Irving R. Kaufman, Report on Study of the Protracted Case, 21 F.R.D. 55, 61-63 (1957).
44. See infra pp. 571-78.
45. For discussion of the inadequate incentives to cooperate in discovery in high-stakes cases, see infra pp. 550-52.
46. See infra Part VIII.
47. Without any pretense to exhaustiveness, these amendments provided the following major changes, in addition to many others less significant or of a technical nature. In 1948, the requirement of leave of court for taking depositions was eliminated, see Advisory Committee on Rules for Civil Procedure, Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F.R.D. 433, 453 (1946);
48. it was recognized that there should be no arbitrary limits on the number or scope of interrogatories, see id. at 461; the standard for document production and inspection was eased from documents "material to the case" to documents "related to the case." Id. at 463. In 1970, insurance policies were explicitly made discoverable, see Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 487 (1970);
49. automatic grant of priority was eliminated, see id. at 488; the party seeking discovery was made responsible for invoking judicial determination of discovery disputes, id. at 522; and the motion to compel was widened to apply to all discovery devices except for mental and physical exams under Rule 35, see id. at 538. In 1980, discovery conferences with the court were first authorized, Amendments to the Federal Rules of Civil Procedure, 85 F.R.D. 521, 526 (1980),
50. and depositions were permitted to be recorded by non-stenographic means, see id. at 528. In 1983, the sentence of Rule 26(a), which provided that the frequency of use of discovery mechanisms was not to be limited, was deleted, a sentence was added to Rule 26(b) permitting courts to limit discovery; and Rule 26(g), which encouraged judges to impose appropriate sanctions for discovery abuse, was added. See FED. R. CIV. P. 26, advisory committee notes to the 1983 amendments. In 1993, new automatic disclosure provisions were provided for the first time.
51. See Amendments to the Federal Rules of Civil Procedure, 146 F.R.D. 401, 628 (1993).
52. See supra note 21. But see Niemeyer, supra note 9, at 523.
53. In a well-known dissent from the Supreme Court's adoption of the 1980 amendments to Rules 26, 33, 34 and 37, Justice Powell wrote that while the amendments themselves were "not inherently objectionable[,] . . . Congress' acceptance of these tinkering changes will delay for years the adoption of genuinely effective reforms." Amendments to Federal Rules of Civil Procedure, 446 U.S. 997, 997-1000 (1980) (Powell, J., dissenting).
54. See Clinton v. Jones, 520 U.S. 681, 722 (1997) (Breyer, J., concurring) ("[T]he time and expense associated with . . . discovery . . . have increased.").
55. FED. R. CIV. P. 1.
56. See Edward D. Cavanagh, The August 1, 1983 Amendments to the Federal Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery Through Local Rules, 30 VILL. L. REV. 767, 775 & n.34 (1985).
57. See GLASER, supra note 20, at 9. As Judge Keeton noted in his primer on trial tactics, the impossibility of eliminating the chance of surprise completely while our litigation system remains adversarial not only renders the system prone to abuse but also is a reason for its effectiveness. See ROBERT E. KEETON, TRIAL TACTICS AND METHODS 5 (1973).
58. See Porter v. Shoemaker, 6 F.R.D. 438, 442 (M.D. Pa. 1947) ("[C]ivil trials in the federal courts no longer need be carried on in the dark. The way is now clear . . . for the parties to obtain the fullest possible knowledge of the issues and facts before trial."); GLASER, supra note 20, at 114, 234; GEORGE RAGLAND, JR., DISCOVERY BEFORE TRIAL 251-66 (1932);
59. Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. REV. 1295, 1298-1303 (1978) [hereinafter Brazil, The Adversary Character of Civil Discovery] (summarizing the purposes of the litigation concept expressed in the Federal Rules of Civil Procedure).
60. See Blaner et al., supra note 8, at 8 (asserting that the drafters sought to redress imbalance of power between wealthy and poor by mandating full exchange of information).
61. See FED. R. CIV. P. 30.
62. See FED. R. CIV. P. 31.
63. See FED. R. CIV. P. 33.
64. See FED. R. CIV. P. 34.
65. See FED. R. CIV. P. 35.
66. See FED. R. CIV. P. 36.
67. Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. REV. 747, 748 (1998).
68. Rule 26(b)(1) provides: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1).
69. The proposed amendments that have been approved by the Judicial Conference of the United States would narrow this standard by substituting the phrase "to the claim or defense of any party" for "the subject matter involved in the pending action," permitting discovery into the subject matter by court order on good cause shown. PRELIMINARY DRAFT, supra note 21, at 41-42.
70. 28 U.S.C. §§ 471-482 (1994).
71. See Lawson v. Callahan, 111 F.3d 403, 404 (5th Cir. 1997).
72. See FED. R. CIV. P. 26(a)(1).
73. The proposed amendments would eliminate the possibility of opting out of the automatic disclosure provision by local rule, thus restoring national uniformity as to automatic disclosure among federal district courts. See PRELIMINARY DRAFT, supra note 21, at 34-36.
74. See FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 2, 21;
75. RAND REPORT, supra note 6, at xxvii-xxviii, 27.
76. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 357 n.24 (1978) (noting that discovery "rules contemplate that discovery will proceed without judicial intervention unless a party moves for a protective order . . . or an order compelling discovery"); Griffin B. Bell et al., Automatic Disclosure in Discovery - The Rush to Reform, 27 GA. L. REV. 1, 7-8 (1992);
77. Wayne D. Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules for Case Management and Sanctions, 1981 AM. B. FOUND. RES. J. 873, 881-82 [hereinafter Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions];
78. Maurice Rosenberg & Warren R. King, Curbing Abuse in Civil Litigation: Enough Is Enough, 1981 BYU L. REV. 579, 581.
79. This essential conception of discovery received additional support in the 1970 revision, which increased the availability of compensatory sanctions for the party prevailing when judicial intervention was invoked. See 8A WRIGHT ET AL., supra note 1, § 2288, at 664-66.
80. See, e.g., John K Setear, The Barrister and the Bomb: The Dynamics of Cooperation, Nuclear Deterrence, and Discovery Abuse, 69 B.U. L. REV. 569, 593-601 (1989).
81. See id. at 598-99. This prediction appears to accord with experience. In legal communities in which counsel encounter each other (and judges) repeatedly, anecdotal evidence suggests that "hardball" and discovery disputes are less common. In large cities where mega-law firms are common and counsel rarely encounter each other (or judges) repeatedly, confrontational behavior and discovery disputes are more common. See, e.g., Gilson & Mnookin, supra note 19, at 537-41, 546-50. As Professor Cooper has suggested to me, this may help to explain the finding of the Federal Judicial Center Report that firm size is a factor correlating with increased discovery expense. FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 2. Perhaps increased discovery expense is attributable less to firm size than to the location of large firms in litigation arenas that produce few repeat encounters. It is also true, however, that more complex and high-stakes cases, which the Federal Judicial Center found produce higher levels of contention and disputes in discovery, tend to be handled by large firms.
82. As Chief Judge Joe E. Estes of the United States District Court for the Northern District of Texas wrote in 1959, "[t]he scope and spirit of the federal discovery rules are so broad and liberal that today complete discovery is virtually assured. All that need be done to obtain all relevant information in a case is to avail oneself of the veritable arsenal of discovery weapons found in the rules." Joe E. Estes, Discovery, 29 F.R.D. 280, 280 (1961).
83. See Cooter & Rubinfeld, Reforming the New Discovery Rules, supra note 18, at 65;
84. see also Samuel R. Gross & Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial, 90 MICH. L. REV. 319, 320-21 (1991).
85. Miller, supra note 13, at 15.
86. See infra Part V for discussion of the view of some economists that discovery misuse is discovery of which the expense of responding exceeds the value of the information discovered.
87. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 (11th Cir. 1997).
88. See id. at 1367-68 ("[S]carce judicial resources must be diverted from other cases to resolve discovery disputes.").
89. Although the significance of these changes cannot be overemphasized, they have often been overlooked or ignored by critiques of discovery in practice. See, e.g., BROOKINGS INST., JUSTICE FOR ALL: REDUCING COSTS AND DELAY IN CIVIL LITIGATION 8 (1989) [hereinafter BROOKINGS INSTITUTION REPORT] ("What has changed during the past fifty years is not the objectives of the rules but the civil justice system itself - the number and kinds of cases, the litigants, and the lawyers.").
90. Unusually candid, if cynical, observations about aspects of document productions and review can be found in CAMERON STRACHER, DOUBLE BILLING (1998).
91. FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 8.
92. The term "document" is usually defined broadly enough in requests for production of documents pursuant to Rule 34, to encompass electronically recorded and stored messages and data, e.g., "'Document' means the original and all non-identical copies of any written, graphic or recorded matter of any kind or character, including all drafts."
93. See Geoffrey C. Hazard, Ethics Crossfire: Two Legal Titans Face Off, NAT'L L.J., Feb. 1, 1999, at A22 ("[L]aw firms [should] be limited to 50 lawyers, on the theory that some such scale is the maximum for maintaining an effective ethical climate.").
94. See supra text accompanying note 53.
95. United States v. Cleveland, No. Crim. A. 96-207, 1997 WL 539664, at *4 (E.D. La. Aug. 27, 1997).
96. Even these matters are extremely contentious on occasion. See United States ex rel. Mobin v. Desert Constr., No. 95-1661, 1996 WL 328803, at *2-3 (9th Cir. June 11, 1996) (noting that counsel refused to cooperate in drafting joint final pretrial order); Ward v. Mawee, No. 92-2579, 1994 WL 38682, at *1 (7th Cir. Feb. 9, 1994) (same); Four Star Capital Corp. v. Nynex Corp., No. 93 Civ. 3706, 1995 WL 594863, at *1 (S.D.N.Y. Oct. 10, 1995) (noting counsel unable to agree on schedule); Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1106 (D.N.J. 1993) (same).
97. A study by Joseph L. Ebersole and Barlow Burke concluded inter alia that "many of the causal factors [of discovery problems] arise out of the adversary system itself." JOSEPH L. EBERSOLE & BARLOW BURKE, FEDERAL JUDICIAL CTR., DISCOVERY PROBLEMS IN CIVIL CASES 72 (1980).
98. See ERIC BENTLEY, THE LIFE OF THE DRAMA 4 (1964) ("To see drama in something is both to perceive elements of conflict and to respond emotionally to these elements of conflict."). This fact goes far to explain the persistent popularity of fictionalized and romanticized dramatizations of lawsuits and prosecutions.
99. To the extent that clients take conflicts personally they make large emotional investments in litigation, and the potential for them to behave in ways that are not obviously rational (at least by reference to conventional economic measures) increases.
100. Given the uncertainty, expense and aggravation inherent in litigation, the damages, rights and obligations at issue must by definition be "significant" to the parties.
101. Recent empirical research suggests that litigators' aggressiveness may be related to body chemistry. One study found that both male and female trial lawyers had testosterone levels about 30% higher than non-trial lawyers, a finding that seemingly corroborates common perceptions of trial lawyers as having a "macho mystique and confrontational manner." James M. Dabbs, Jr. et al., Trial Lawyers and Testosterone: Blue-Collar Talent in a White-Collar World, 28 J. APPLIED SOC. PSYCHOL. 84, 87 (1998).
102. The study explicitly left open the question whether increased testosterone levels cause or result from the pugnacious environment in which litigators operate, although it expressed doubt that trial work would have raised the subjects' testosterone levels, since testosterone changes due to circumstance are usually temporary. See id. at 87-88; see also Juris Cojónes, N.Y. TIMES MAG., Nov. 1, 1998, at 27.
103. See, e.g., Gilson & Mnookin, supra note 19, at 512 n.13 (citing quotation of chairman of Sullivan & Cromwell that "Sullivan & Cromwell fights tough . . . and 'clients like a law firm that's aggressive'"). The appeal of aggressiveness to clients conveniently coincides with the strategic advantages thought by many lawyers to accrue from aggressive tactics and behavior.
104. See NADER & SMITH, supra note 3, at 63 ("Winning the discovery war is often the key to winning the lawsuit. . . ."); Marvin E. Aspen et al., Interim Report of the Committee on Civility of the Seventh Judicial Circuit, 143 F.R.D. 371, 383 (1991) (stating that discovery too often is a "battlefield on which verbal hostility, overly aggressive tactics and often automatic and unreasoned denials of cooperation are the principal weapons");
105. Kenneth W. Starr, Law and Lawyers: The Road to Reform, 63 FORDHAM L. REV. 959, 964 (1995) ("In litigation, pretrial discovery is, and has been, the great battlefield.").
106. This is what I was taught by an early mentor in private practice when beginning to take and defend depositions. For a description of a similar approach, see PERLMUTTER, supra note 11, at 59. The potential of such advice to encourage lawyers defending depositions to cross the line from legitimate behavior to speaking objections, interruption and obstruction should be obvious.
107. In his posthumously published memoirs, Arthur Liman wrote, "Adopted in the federal system in 1938 as a well-intentioned and sensible reform, discovery became in my time a weapon lawyers wielded to harass and bludgeon adversaries into submission or settlement." ARTHUR L. LIMAN, LAWYER: A LIFE OF COUNSEL AND CONTROVERSY 234-35 (1998).
108. To the same end, see MARVIN E. FRANKEL, PARTISAN JUSTICE 18 (1980) ("Where the object always is to beat every ploughshare into a sword, the discovery procedure is employed variously as weaponry.").
109. Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 COLUM. L. REV. 480, 482-83 (1958). Furthermore: Laymen do not view with unbounded enthusiasm the prospect of expending their time and money in pretrial procedures that are expressly designed to produce information or evidence to help their adversary's case. . . . Sometimes sooner, sometimes later, the client's attitude is translated into his lawyer's actions, and he resists his adversary's discovery demands.
110. Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, (1958). Id.
111. RAND REPORT, supra note 6, at xx, 27.
112. I use the term "adversariness" to refer to partisan opposition or competitiveness of attitude. For litigators' aggression or obstruction, see supra note 72 and infra Part VIII.
113. See Gilson & Mnookin, supra note 19, at 510-11.
114. "Agent" is used here in its technical sense as one who represents and can bind a principal and who, under prevailing concepts of agency law, has a fiduciary duty to further the principal's interests. See RESTATEMENT (SECOND) OF AGENCY § 1 cmt. b, e (1958).
115. According to Professor Simon and others, the mandate of "zealous advocacy within the bounds of the law" contained in the Model Code of Professional Responsibility accurately if crudely encapsulates the prevailing approach to lawyers' ethics, and legitimates (or in some lawyers' views obligates) the lawyer "in pursuing any arguably lawful goal of the client through any arguably lawful means." WILLIAM H. SIMON, THE PRACTICE OF JUSTICE 7-8 (1998).
116. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 cmt. 1 (1983).
117. MODEL RULES OF PROFESSIONAL CONDUCT (1983). Id.
118. Many lawyers understand this to permit any conduct on the client's behalf that is not explicitly prohibited. The comparable provision of the Model Code of Professional Responsibility, Canon 7, stated, "A lawyer should represent a client zealously within the bounds of the law." MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 7 (1980). Simon notes that although the Model Rules are less explicit, its advocacy and confidentiality provisions "amount to almost precisely the same approach as the Code." SIMON, supra note 82, at 8.
119. There are, of course, additional practical reasons for aggressive behavior in discovery, including "sending a message" of various kinds to the opposing party and its counsel, e.g., that the party will not capitulate easily, or that suing the party will result in various expensive and unpleasant consequences.
120. See Brazil, The Adversary Character of Civil Discovery, supra note 35, at 1315-31, for a description of some of the ways in which adversarial norms influence lawyers' conduct of informal investigations, responses to interrogatories and requests for production of documents, and conduct in depositions.
121. Both of these practices clearly violate Rule 34's directive that documents produced for inspection and copying may be produced "as they are kept in the usual course of business[,]" or shall be organized and labeled "to correspond with the categories in the [document] request." FED. R. CIV. P. 34(b).
122. Crystal, supra note 20, at 726.
123. As a recent article put it, "[t]here is nothing improper about aggressively pursuing discovery. In fact, that is precisely what litigators are paid to do. . . . Again, we owe our clients a duty to oppose requests for discovery that are improperly broad, ambiguous, burdensome, or directed to irrelevant information." Shugrue, supra note 11, at 11.
124. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983);
125. see also RESTATEMENT(SECOND) OF AGENCY § 169 (1958).
126. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 cmt. 21 (1983).
127. MODEL RULES OF PROFESSIONAL CONDUCT (1983). Id. Rule 1.6. Confidentiality stipulations and protective orders thus help to facilitate discovery, since even though a lawyer has an obligation to assist a client in responding to discovery by adversaries in litigation, she still has an obligation to preserve the client's secrets with respect to the rest of the world and to keep them from being used for purposes beyond the litigation.
128. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 cmt. 21.
129. See id. Rule 3.3(a)(2) (discussing the duty to disclose material facts and the limits of this duty). In most jurisdictions - Florida, Illinois and Massachusetts being notable exceptions - the Rules as adopted make no provision for disclosure of a client confession to a crime even where necessary to show that another person is being wrongly incarcerated or in danger of execution. See STEPHEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 74-78 (Aspen Law & Business 1998).
130. See Michael E. Wolfson, Addressing the Adversarial Dilemma of Civil Discovery, 36 CLEV. ST. L. REV. 17, 19-20 (1988).
131. See D.A. Ipp, Lawyers' Duties to the Court, 114 LAW Q. REV. 63, 65 (1998).
132. Lord Henry Brougham, who defended Queen Caroline against charges of adultery, is reported to have told the House of Lords: [A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. . . . [H]e must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion. 2 TRIAL OF QUEEN CAROLINE 8 (J. Nightingale ed., 1821).
133. Professor Gordon has referred to this as the triumph of "the Zealous Advocacy principle" over "the Justice-Serving principle." Robert W. Gordon, Is Law Still a Profession? Was it Ever One? And Does it Matter? 12 (Nov. 20, 1998)
134. (unpublished paper presented at the Don Herzog and Rick Pildes Legal Theory Workshop at the University of Michigan Law School) (on file with author).
135. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990) ("Counsel have an obligation, as officers of the court, to assist in the discovery process by making diligent, good-faith responses to legitimate discovery requests."); Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466 n.3 (11th Cir. 1984) (per curiam) (stating that attorneys do not meet obligations as officers of court by pre-trial game playing); Smith v. Our Lady of the Lake Hosp., Inc., 135 F.R.D. 139, 150 (M.D. La. 1991) (quoting McLeod, Alexander, Powel & Apffel, P.C., 894 F.2d at 1486), rev'd on other grounds, 960 F.2d 439 (5th Cir. 1992).
136. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.4(a)-(d) (1983).
137. As Professor Rhode has aptly noted, "the Model Rules do little more than incorporate general prohibitions on crime and fraud." Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REV. 589, 601 (1985).
138. See The Worrying Zeal of Ken Starr, ECONOMIST, June 6, 1998, at 32 (quoting view of Kenneth Starr that "lawyers have a duty not to use their skills to impede the search for truth" and response of leading legal ethics expert Professor Geoffrey C. Hazard, Jr. that Starr's assertion "is not only ludicrous; it is pernicious").
139. See id.
140. Model Rule 3.2, entitled "Expediting Litigation", states: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.2.
141. The official comment explains that the test is "whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay[,]" and notes further that "[realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client." Model Rules of Professional Conduct Id. cmt.
142. Although professional responsibility treatises accept this position without question, see, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 599-600 (1986), it may be doubted whether it would meet with significant (much less universal) acceptance among practicing lawyers.
143. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.4(d) cmt.
144. See Rhode, supra note 100, at 600-01; see also Blaner et al., supra note 8, at 9 ("Under the ethics rules, the attorney's primary obligation is to the client, not the court."). For a contrary view, see William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U. PITT. L. REV. 703, 720-21 (1989).
145. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1487 n.3 (5th Cir. 1990) (quoting The Texas Lawyers' Creed - A Mandate for Professionalism (1989), reprinted in 52 TEX. B.J. 1304, 1304-05 (1989)).
146. Rhode, supra note 100, at 647. Notwithstanding the patent efficacy limitations of professional responsibility norms, some courts treat counsel's duty to cooperate in discovery as based in professional responsibility directives or refer to it as an ethical duty. See, e.g., Higgins v. Lufi, 353 N.W.2d 150, 155 (Minn. Ct. App. 1984) (discussing how attorneys have an ethical duty to cooperate in discovery).
147. Rule 26(g), as amended, provides: (g) Signing of Disclosures, Discovery Requests, Responses, and Objections. (1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made. (2) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is: (A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. (3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. FED. R. CIV. P. 26(g).
148. According to Rule 26(f): The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging and being present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 10 days after the meeting a written report outlining the plan. FED. R. CIV. P. 26(f).
149. FED. R. CIV. P. 26(g)(3), advisory committee comments to the 1983 amendments. The certification duty "requires the lawyer to pause and consider the reasonableness of his request, response or objection."
150. Fed. R. Civ. P. 26 Id. It does not require the signing lawyer to certify "the truthfulness of the client's factual responses[,]" merely "that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available that are responsive to the discovery demand."
151. Fed. R. Civ. P. 26 Id.
152. Fed. R. Civ. P. 26 Id.
153. A search of Westlaw's Allfeds database revealed only 19 reported opinions referring to Rule 26(g)(3) of the Federal Rules of Civil Procedure.
154. Since Rule 26(g)(3) provides mandatory rather than permissive sanctions for violations, one might expect experience with the Rule to approximate the courts' experience with Rule 11, of the Federal Rules of Civil Procedure, between 1983 and 1993, when it provided mandatory rather than permissive imposition of sanctions and generated large amounts of satellite litigation. See, e.g., Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054, 1083 (Wash. 1993) (en banc) (finding that attorneys violated certification requirement for discovery responses equivalent to Rule 26(g) of the Federal Rules of Civil Procedure).
155. See Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 154 (7th Cir. 1976) (finding that an answer did not comport with duty of cooperation and disclosure imposed by discovery provisions of federal rules); Ritter v. Diasonics, Inc., No. 91-7660, 1992 WL 164905, at *1 (E.D. Pa. 1992) (The Federal Rules of Civil Procedure give the trial court the power to impose sanctions for parties' failure to cooperate in discovery."), rev'd on other grounds, 993 F.2d 225 (3d Cir. 1993).
156. See Mungin v. Stephens, 164 F.R.D. 275, 279 (S.D. Ga. 1995) (court instructed plaintiff regarding "duty to cooperate fully in discovery"); Zinn v. Leach, Nos. 90-A-03, 90-CA-08, 1990 WL 187466, at *5 (Ohio Ct. App. 1990) (discussing attorneys' duty to cooperate in discovery).
157. Professor Resnik has referred to the "contradictory mandates" of the Federal Rules of Civil Procedure, stating that "a discovery system ('give your opponent all information relevant to the litigation') was grafted onto American adversarial norms ('protect your client zealously" and therefore 'withhold what you can')." Resnik, supra note 14, at 378.
158. No less an authority than Judge Schwarzer has written: Contrary to a common perception among lawyers, there is no inherent conflict between the lawyer's duty to the client and the duty to the system - the obligation owed as an officer of the court. The obligation of zealous representation owed the client can and should be carried out within the justice system, and hence within the limits imposed by the obligation to preserve and protect the integrity of that system. To acknowledge that limitation on the duty owed to the client need not eviscerate the adversary process in its proper place, for . . . it is premised on an institutional framework rather than on the measure of adversarial confrontation. Schwarzer, supra note 105, at 720-21. With all due respect to Judge Schwarzer, this is simply wrong. To conclude that one set of duties, norms or prescriptions should yield to another does not mean that they do not conflict.
159. Cf. Brazil, The Adversary Character of Civil Discovery, supra note 35, at 1347. Brazil states: Without major changes in the adversary rules that shape the pretrial environment, there can be no effective judicial control of discovery. If the rules of the adversary game are left essentially intact, interjecting a judicial officer into the discovery process will simply add another adversary (the court) to the combat. Counsel and clients will continue to conceal material evidence until clearly compelled to divulge it, resist disclosure of damaging information, and seek ways to gain advantages over opponents through the use of discovery tools.
160. Brazil, The Adversary Character of Civil Discovery, 1347. Id.
161. BROOKINGS INSTITUTION REPORT, supra note 60, at 7 (quoting Judge William Schwarzer).
162. To the extent that Judge Schwarzer had in mind unthinking discovery, as well as the "one size fits all" mentality often exemplified by wordprocessor-generated discovery requests, his criticism is well taken.
163. See In re Ruben, 825 F.2d 977, 989-90 (6th Cir. 1987); Aldrich v. Wainwright, 777 F.2d 630, 631-37 (11th Cir. 1985); McClung v. Smith, 870 F. Supp. 1384, 1404-05 (E.D. Va. 1994).
164. Pre-trial conferences and partial summary judgment can also be used to narrow issues.
165. See CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 468 (5th ed. 1994).
166. Patrick E. Higginbotham, General Provisions Governing Discovery; Duty of Disclosure, 6 MOORE'S FEDERAL PRACTICE 3D § 26.02, at 26-26 (1999); see also Conley v. Gibson, 355 U.S. 41, 47-48 (1957).
167. See Conley v. Gibson, 355 U.S. at 47-48; Dioguardi v. Burning, 139 F.2d 774, 775 (2d Cir. 1944).
168. See EBERSOLE & BURKE, supra note 68, at 77-78.
169. FED. R. CIV. P. 26(b)(1). Judicial decisions about when discovery sought is "reasonably calculated to lead to the discovery of admissible evidence" are much easier in fact pleading than in notice pleading regimes, since complaints are richer in factual detail.
170. See GLASER, supra note 20, at 161.
171. See supra pp. 519-20.
172. See Wayne D. Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules for Case Management and Sanctions, 1981 AM. B. FOUND. RES. J. 873, 879;
173. see also Frank H. Easterbrook, Discovery as Abuse, 69 B.U. L. REV. 635, 641 (1989).
174. The Judge's Role in Discovery, 3 REV. LITIG. 89, 117 (1982). Although Judge Goettel did not specifically identify the proposal he had in mind, in all likelihood it was that advanced in 1977 by a Special Committee of the American Bar Association's Section of Litigation to limit the scope of discovery to "issues raised by the claims or defenses of any party." PRELIMINARY DRAFT, supra note 21, at 9-10; see also ACF Indus. Inc. v. EEOC, 439 U.S. 1081, 1087 (1979) (Powell, J., dissenting from denial of certiorari) (quoting letter from Hon. Griffin Bell that in his experience as a judge, practicing lawyer and Attorney General of the United States, the scope of discovery is far too broad).
175. Pub. L. No. 104-67, 109 Stat. 737 (1995).
176. PRELIMINARY DRAFT, supra note 21. Its proposals included: elimination of the opt-out authorization from the automatic disclosure procedure in Rule 26(a)(1) as well as limitation of the scope of required automatic disclosure; elimination of the authorization in Rule 26(b)(2) for local rules altering presumptive national limits on frequency or duration of discovery requests; amendment of the discovery moratorium of Rule 26(d) so that the parties can immediately commence discovery in cases to which initial disclosure does not apply; amendment of Rule 26(f)'s provision for a face-to-face discovery conference to one that could occur by telephone or video conferencing; addition of a presumptive limit of one seven-hour day on depositions; and sanctions for failure to supplement discovery responses under Rule 26(d)(2). See id. at 34-59. The Preliminary Draft also contained another proposed change, making explicit court power to allow a party to pursue a discovery request that otherwise would violate the limit of Rule 26(b) on condition that the requesting party pay part or all of the reasonable costs of responding, however, this proposal, after being approved by both the Advisory Committee on Civil Rules and the Standing Committee on Rules of Practice and Procedure, was not approved by the Judicial Conference of the United States. See infra notes 134-36.
177. See Memorandum from the Honorable Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules, to the Honorable Anthony J. Scirica, Chair, Committee on Rules of Practice and Procedure 1 (May 11, 1999) (on file with author) [hereinafter Niemeyer Memorandum].
178. See E-mail from Professor Thomas Rowe to Law Faculty Discussion List on Civil Procedure (July 26, 1999) (on file with author).
179. See E-mail from Professor Thomas Rowe to Law Faculty Discussion List on Civil Procedure (Sept. 15, 1999) (on file with author). According to the Rules Committee Support Office at the Administrative Office of the United States Courts, the Judicial Conference "Voted to approve, with one exception, all the rule amendments recommended by the Standing Rules Committee. The Conference rejected the proposed amendments to Civil Rule 26(b)(2) dealing with cost bearing. Long discussions were held on the Civil Rules' initial-disclosure and scope-of-discovery proposals, and the votes approving these two proposals were extremely close.'" Id. (quoting a report on the Conference's action).
180. See id.
181. Proposed Amendments to the Federal Rules of Civil Procedure, supra note 21, at 81-82.
182. Id. at 83.
183. The Advisory Committee traces the ancestry of this proposal back to a proposal to amend the rule made in 1978 by the American Bar Association's Section of Litigation and renewed from time to time by different bar groups, most recently by the American College of Trial Lawyers. See PRELIMINARY DRAFT, supra note 21, at 9-10, 54; see also supra note 131.
184. See PRELIMINARY DRAFT, supra note 21, at 4.
185. Id. at 55-56 (citation omitted).
186. See id.
187. FED. R. CIV. P. 26(c); see also Herbert v. Lando, 441 U.S. 153, 177 (1979).
188. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947) (emphasis added); see also Klonoski v. Mahlab, 156 F.3d 255, 267 (1st Cir. 1998), cert. denied sub nom. Mary Hitchcock Mem'l Hosp. v. Klonoski, 119 S. Ct. 1334 (1999); Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995).
189. Oppenheimer Fund, 437 U.S. at 351 (quoting 4 J. MOORE, FEDERAL PRACTICE ¶ 26.56[1], at 26-131 n.34 (2d ed. 1976)).
190. As students of legal change are aware, the unintended consequences of legislation or rulemaking are often even more significant than the intended effects.
191. The proposal favors defendants for at least two reasons. First, plaintiffs typically need more discovery than do defendants, and the restricted scope of "attorney-managed" discovery will facilitate narrowing and resisting discovery by defendants. Second, the proposal's indirect effects on pleadings, namely that it will require plaintiffs' lawyers to aver the circumstances giving rise to claims in greater detail if discovery is to be available, will give additional particularized notice to defendants.
192. See infra Part VII.
193. See Easterbrook, supra note 130, at 641.
194. Since the proposals for this revision have come mainly from the defense bar through the years, I use the term "unintended" to refer presumptively to the Advisory Committee, not to the proposal's originators and boosters.
195. 355 U.S. 41 (1957).
196. I am grateful to Professor Edward H. Cooper, Reporter to the Civil Rules Advisory Committee, for this information. See Summary of Public Comments on the Preliminary Draft of Proposed Amendments to the Civil Rules Regarding Discovery 1998-99, at 74-121 (unpublished report prepared by Professor Richard L. Marcus, Reporter to the Discovery Subcommittee of the Advisory Committee on Civil Rules) (on file with author).
197. See Niemeyer Memorandum, supra note 134, at 5-6. One member of the Advisory Committee, Professor Thomas Rowe, moved to abandon the proposed change to Rule 26(b)(1) relating to the scope of discovery, however, following debate, the Committee voted 9-4 against the motion, thus to continue with the Proposed Amendment as it relates to the scope of discovery. See id.
198. Rule 8(a) provides in relevant part: "A pleading which sets forth a claim for relief . . . shall contain . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." FED. R. CIV. P. 8(a).
199. It is possible to argue that liberal discovery of facts relevant to the subject matter of an action permits commencement of litigation based on little more than well-founded suspicion. "Subject-matter-relevant" discovery thus assists private enforcement of complex regimes of public law, such as federal securities law, civil rights law, and antitrust law, to name but three examples. Undoubtedly discovery of facts relevant to the subject matter of a claim or defense allows plaintiffs to develop and piggy-back claims discovered after commencement of an action on claims known prior to commencement. Defendants opposed to the underlying law thus may have added incentives to obstruct and resist discovery. Moving back from the standard of "subject-matter-relevant" discovery would reduce the possibility of leveraging known into unknown claims, but unless one believes that discovery should permit fishing expeditions, that may well not be a bad thing. Regardless, it is beyond the scope of this Article.
200. See Setear, supra note 52, at 581-82; see also Easterbrook, supra note 130, at 637-38 (distinguishing "normal" discovery requests, i.e. informational, from "impositional" discovery requests).
201. See Easterbrook, supra note 130, at 645 ("Impositional discovery depends on asymmetric stakes; the requester incurs lower costs than the person interrogated.").
202. See Setear, supra note 52, at 580-81.
203. John K Setear, Note, Discovery Abuse Under the Federal Rules: Causes and Cures, 92 YALE L.J. 352, 353, 357 (1982). The analysis defines a "socially efficient" level of discovery by hypothesizing a litigant who both receives all the benefits from discovery and must incur all its costs. Id. at 357. Such a litigant would only take a particular discovery step if its benefits to him exceeded its costs. See id. Because litigants under the Federal Rules of Civil Procedure are able routinely to externalize costs of discovery, they have an incentive to take discovery in socially inefficient amounts. See id. This asserted problem of socially excessive discovery is intensified, it is said, by the fact that litigants are represented by lawyers who gain benefits from discovery that do not accrue to the client while they incur few of the costs. See id. at 357-58.
204. See Cooter & Rubinfeld, An Economic Model of Legal Discovery, supra note 18, at 437. In Setear's terminology, this is when discovery's impositional effects exceed its informational benefits. See Setear, supra note 52, at 581-83.
205. Cooter & Rubinfeld, An Economic Model of Legal Discovery, supra note 18, at 437.
206. Cooter & Rubinfeld, An Economic Model of Legal Discovery, 437. Id.
207. See id. They reason: When the parties agree to settle a dispute by dividing the bargaining surplus equally, the settlement corresponds to the expected judgment in the event of a trial, provided that the transaction costs of dispute resolution are equal for the two parties. In contrast, asymmetrical transaction costs distort the terms of settlement so that they do not correspond to the expected trial judgment. For example, if the plaintiff faces lower trial costs than the defendant, then the plaintiff can demand more than the expected judgment to settle the case. Id.; see also Cooter & Rubinfeld, Reforming the New Discovery Rules, supra note 18, at 62 ("Equalizing discovery costs eliminates distortions in bargaining power between the parties and promotes fairness.").
208. See Cooter & Rubinfeld, Reforming the New Discovery Rules, supra note 18, at 71.
209. See id.
210. See id.
211. Id. at 71-72.
212. Lawyers for discovery respondents - particularly defendants - may, of course, review for responsiveness, privilege and work product far more material than they ultimately produce, and often are heard to complain that they routinely produce hundreds of thousands of pages of requested materials that the requesting lawyers never even inspect.
213. As Professor Cooper has put it, "[t]he actual value of information will depend on many factors, including the relative astuteness of the person who gains it." Cooper, supra note 2, at 467.
214. See Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497, 548 (1991);
215. John C. Coffee, Jr., The Unfaithful Champion: The Plaintiff as Monitor in Shareholder Litigation, LAW & CONTEMP. PROBS., Summer 1985, at 17.
216. Easterbrook, supra note 130, at 641 (footnote omitted).
217. As Professor Cooper has pointed out to me, a judge or jury is likely to render a larger award if 75% confident on the merits than if 51% (or 30%).
218. How their model would operate in cases in which what is at stake is injunctive or declaratory, rather than monetary, relief, Cooter and Rubinfeld conveniently do not bother to describe. See Cooper, supra note 2, at 470.
219. As Judge Easterbrook has put it, "How can a judge distinguish a dry hole (common in litigation as well as in the oil business) from a request that was not justified at the time?" Easterbrook, supra note 130, at 639; see also Cooper, supra note 2, at 468.
220. See generally Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247-71 (1975).
221. See Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796).
222. Joseph J. Ward, Corporate Goliaths in the Costume of David: The Question of Association Aggregation Under the Equal Access to Justice Act-Should the Whole Be Greater Than Its Parts?, 26 FLA. ST. U. L. REV. 151, 156 n.24 (1998).
223. See, e.g., A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 75-86 (2d ed. 1989).
224. See FED. R. CIV. P. 37(a).
225. See FED. R. CIV. P. 26(c).
226. See FED. R. CIV. P., advisory committee's explanatory statement concerning 1970 amendments to discovery rules, pt. V ("The party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties.").
227. See FED. R. CIV. P. 37(a).
228. See FED. R. CIV. P. 26(c).
229. Both Rule 26(c) and Rule 37(a) impose "meet and confer" obligations. FED. R. CIV. P. 26(c), 37(a).
230. Ronald Olson, a prominent member of the California bar, has stated that "the rules requiring attorneys to confer, or to certify that a good faith effort to do so was made . . . are totally mechanistic and a waste of time. They create just one more hurdle and one more costly step before reaching the heart of the problem." The Judge's Role in Discovery, supra note 131, at 141;
231. see also FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 32 (finding that the majority of 60% of lawyers "who had met and conferred did not think meeting and conferring had any effect on litigation expenses, disposition time," or number of issues in case).
232. Conversations with friends in practice suggest that some judges rarely award monetary sanctions, despite the apparent intention of the initially mandatory language of Rule 37, leaving the risk of incurring judicial displeasure as the only practical limit on adversarial behavior in discovery disputes. See infra pp. 554-55.
233. This explains the findings of the Federal Judicial Center Report and the RAND Report that discovery works well in the majority of "routine" cases. FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 21;
234. RAND REPORT, supra note 6, at 74.
235. The "stakes" can vary tremendously, from simply the maximum possible monetary recovery or loss in the specific case, to possible considerations or consequences extending far beyond the case, including the value of the information sought to be produced or protected, the stare decisis value of the result of the lawsuit, the value of future litigations based on similar claims, etc., which sometimes can far exceed the amount at issue in the immediate case. See FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 71-72.
236. FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 21.
237. This analysis accords with David M. Trubek's finding that stakes cap the amount of lawyer time invested. See David M. Trubek et al., The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 95-96 (1983).
238. Among the common ones are that the interrogatory or document request is: (1) vague; (2) not reasonably calculated to lead to the discovery of admissible evidence; (3) overly broad in scope; or (4) unreasonably burdensome to respond to. See, e.g., Trustmark Life Ins. Co. v. University of Chicago Hosp., No. 94-C4692, 1996 U.S. Dist. LEXIS 1614, at *24-25 (N.D. Ill. Feb. 14, 1996) (including objections stating that document request was "overly broad, unduly burdensome, oppressive, designed to annoy and/or harass, and . . . not reasonably calculated to lead to the discovery of admissible evidence" merely tracked language of Rule 26(b)(2) and did not give any factually-based explanation for conclusion that request was improper).
239. See, e.g., Wallace v. General Elec. Co., No. 87-1236, 1988 U.S. Dist. LEXIS 10711, at *7-9 (E.D. Pa. Sept. 22, 1988) (stating that defendant answered plaintiff's interrogatories subject to objections).
240. FED. R. CIV. P. 26(g).
241. See FED. R. CIV. P. 30(c).
242. See Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1362 (Fed. Cir. 1990) (holding that a party served with a document request has the options of (1) responding by agreeing to produce documents as requested; (2) responding by objecting; (3) moving for protective order; and (4) ignoring the request; only ignoring the request or totally failing to respond justifies imposition of Rule 37(d) sanctions). The court in Fisons stated: It appears clear that no conceivable discovery request could have been made by the doctor that would have uncovered the relevant documents, given the above and other responses of the drug company. The objections did not specify that certain documents were not being produced. Instead the general objections were followed by a promise to produce requested documents. These responses did not comply with either the spirit or letter of the discovery rules and thus were signed in violation of the certification requirement. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054, 1083 (Wash. 1993) (en banc).
243. See, e.g., American Health Sys., Inc. v. Visiting Nurse Ass'n, No. 93-0542, 1994 U.S. Dist. LEXIS 15447, at *20 (E.D. Pa. Oct. 20, 1994) (holding that where defendants represented repeatedly that they would produce requested documentation subject to their initial objections, plaintiff has obligation to facilitate defendants' promised production prior to filing motion to compel).
244. But see Fisons, 858 P.2d at 345 (holding that a motion to compel compliance is not a prerequisite to a sanctions motion).
245. See, e.g., Jerold S. Solovy & Robert L. Byman, Discovery: The Utility of RFAs, NAT'L L.J., Jan. 18, 1999, at B16, B16 ("Putting aside systematic and outrageous discovery abuse for which ultimate sanctions can be imposed, the typical remedy for typical evasiveness is usually no more severe than an order to do what you should have done in the first place, probably coupled with a manageable monetary sanction.").
246. Evasion is not completely without risk, since courts have discretion under Rule 37 to exclude evidence not produced in discovery without a prior motion to compel. See Jerold S. Solovy & Robert L. Byman, Discovery: Fight the Compulsion to Compel, NAT'L L.J., June 7, 1999, at B22, B22.
247. The "preclusion sanctions" provided by Rule 37(b)(2) include: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. FED. R. CIV. P. 37(b)(2).
248. KEETON, supra note 15, at 182.
249. See id. at 184-87.
250. I owe this suggestion to Professors Jeffrey S. Parker and Larry E. Ribstein of George Mason University School of Law. See infra pp. 560-61.
251. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 & n.10 (1962).
252. See, e.g., Baker v. General Motors Corp., 86 F.3d 811, 817 (8th Cir. 1996), rev'd on other grounds, 522 U.S. 222 (1998).
253. See, e.g., Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1162, 1172-73 (7th Cir. 1984) (en banc) (showing disagreement between majority and minority whether plaintiffs' discovery of defendant's membership records was "predatory" or necessary to establish claims), rev'd on other grounds, 470 U.S. 373 (1985). Another example was the discovery reported by the press to have been requested by each party in Jones v. Clinton concerning the sexual history, practices and attitudes of the adversary. See Neil A. Lewis, Jones's Lawyers Ask President For Details About His Sex Life, N.Y. TIMES, Oct. 15, 1997, at A16. Although discovery into such private matters obviously had potential for embarrassment, humiliation and coercion to settle, it also was the kind of information arguably needed by each party to prove its respective claims or defenses.
254. See Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979).
255. See Baker, 86 F.3d at 817 (holding that the sanction for failure to comply with a discovery order is too harsh if it "failed to achieve a balance between the policies of preventing discovery delays and deciding cases on the merits.").
256. See Rosenberg, supra note 77, at 483.
257. KEETON, supra note 15, at 184. Judge Keeton gives notice to lawyers who appear before him both through an order regarding discovery (a form of which is included in his book, see id. at 185-88) and, at status conferences, in repeated descriptions of his procedure and admonitions to cooperate. See id.
258. See Jonathan M. Conti, The Effect of Salary Arbitration on Major League Baseball, 5 SPORTS LAW. J. 221, 230 (1998);
259. Amy Farmer & Paul Pecorino, Bargaining with Informative Offers: An Analysis of Final-Offer Arbitration, 27 J. LEGAL STUD. 415, 415 (1998).
260. See generally Charles M. Yablon, Poison Pills and Litigation Uncertainty, 1989 DUKE L. J. 54 (noting the beneficial effects of uncertainty in litigation).
261. Professor Cooper informs me that judges who promise prompt discovery rulings say they have no difficulty delivering on the promise, since it is the promise of prompt judicial attention, with its attendant risk of uncertainty, that produced lawyer cooperation. This accords well with the experience of Wilmington lawyers who observe that the Delaware Supreme Court's recent declaration that in case of disputes at depositions, "the Delaware Courts are just a phone call away" has had a salutary effect on the conduct of depositions. See infra note 316.
262. It may be argued that being held to the position the judge deems more reasonable can hardly be viewed as a penalty. However, in situations where the parties have well-grounded arguments for seeking to discover and to protect documents or information, what seems marginally more reasonable to the judge may seem manifestly unreasonable to the losing party, who has scant opportunity to seek appellate review of the decision without incurring contempt sanctions, since rulings on discovery motions are unreviewable interlocutory orders.
263. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247-71 (1975) (holding that new fee-shifting exceptions to the American Rule require Congressional approval); cf. FED. R. CIV. P. 11(c)(2).
264. It resembles unpersuasive arguments by some law and economics scholars that issuers of securities in the capital markets have sufficient incentives to disclose information at a socially optimal level without being compelled to do so by the requirements of the federal securities laws and regulations promulgated by the Securities and Exchange Commission, and that therefore we should abolish the Securities and Exchange Commission along with the federal securities statutes and their system of mandatory disclosure. See, e.g., Jonathan R. Macey, Administrative Agency Obsolescence and Interest Group Formation: A Case Study of the SEC at Sixty, 15 CARDOZO L. REV. 909, 921-49 (1994).
265. Cf. Charles Yablon, Stupid Lawyer Tricks: An Essay on Discovery Abuse, 96 COLUM. L. REV. 1618, 1639 (1996) ("Younger lawyers, convinced that their future careers may hinge on how tough they seem while conducting discovery, may conclude that it is more important to look and sound ferocious than to act cooperatively, even if all that huffing and puffing does not help (and sometimes harms) their cases.").
266. PRELIMINARY DRAFT, supra note 21, at 3.
267. FEDERAL JUDICIAL CENTER REPORT, supra note 2, at 2.
268. RAND REPORT, supra note 6, at xxii.
269. Albert A. Ridge, The Organization of the Big Case - The First Pretrial Conference, 21 F.R.D. 396, 408 (1957).
270. See Jack B. Weinstein, Standing Masters to Supervise Discovery, 23 F.R.D. 36, 37 (1958) (recommending increased use of masters in view of insufficiency of judicial manpower).
271. James R. Withrow, Jr., Defense Counsel's View of a Government Civil Antitrust Suit, 21 F.R.D. 427, 438 (1957).
272. Manley B. Strayer, Discovery in Pretrial Conference Procedure, 23 F.R.D. 347, 350 (1958).
273. Estes, supra note 54, at 297.
274. Irving R. Kaufman, The Philosophy of Effective Judicial Supervision Over Litigation, 29 F.R.D. 207, 213 (1958).
275. GLASER, supra note 20, at 243.
276. See Cutner, supra note 20, at 954.
277. Herbert v. Lando, 441 U.S. 153, 177 (1979).
278. EBERSOLE & BURKE, supra note 68, at 79; see also id. at 64, 73, 76.
279. Rosenberg & King, supra note 50, at 589.
280. William W. Schwarzer, Discovery in the Scheme of Things - Rethinking the Litigation Process, quoted in The Judge's Role in Discovery, supra note 131, at 123.
281. The Judge's Role in Discovery, supra note 131, at 205 (quoting Judge Rubin) (emphasis in original).
282. See Margaret L. Weissbrod, Sanctions Under Amended Rule 26-Scalpel or Meat-ax? The 1983 Amendments to the Federal Rules of Civil Procedure, 46 OHIO ST. L.J. 183, 187-90 (1985).
283. FED. R. CIV. P. 16, advisory committee's notes to 1983 amendment.
284. FED. R. CIV. P. 26(b), advisory committee's notes to 1983 amendment.
285. FED. R. CIV. P. 26(g), advisory committee's notes to 1983 amendment.
286. See Cavanagh, supra note 33, at 776, 778.
287. BROOKINGS INSTITUTION REPORT, supra note 60, at 3, 12-14. The report stated: The excessive cost and delay associated with litigating civil cases in America should no longer be tolerated and can be forcefully addressed through procedural reform, more active case management by judges, and better efforts by attorneys and their clients to control cost and delay. In particular, we conclude: . . . . - That judges should take a more active role in managing their cases, ending the practice in some courts of delegating to magistrates functions that are in fact better performed by judges. Id. at 3.
288. Gilbert Jimenez, Justices Order Pre-Trial Speedup, CHI. SUN-TIMES, June 2, 1995, at 20, available in 1995 WL 6656185.
289. Yablon, supra note 217, at 1620.
290. E-mail from Professor Thomas Rowe to Law Faculty Discussion List of Civil Procedure (Sept. 10, 1997) (on file with author).
291. Irving R. Kaufman, Report on Study of the Protracted Case, 21 F.R.D. 55, 64 (1957).
292. For the use of masters generally, see GLASER, supra note 20, at 240-41; Weinstein, supra note 222, at 37. At the 1982 National Conference on Discovery Reform, diverse opinions were expressed concerning usefulness of magistrates in supervising the discovery process. See The Judge's Role in Discovery, supra note 131, at 100-01.
293. A 1987 Louis Harris opinion survey of 800 state judges and 200 federal judges concluded that the judges polled thought shortage of judges to be the second most important cause of litigation delay generally. See LOUIS HARRIS & ASSOCS., JUDGES' OPINIONS ON PROCEDURAL ISSUES: A SURVEY OF STATE AND FEDERAL TRIAL JUDGES WHO SPEND AT LEAST HALF OF THEIR TIME ON GENERAL CIVIL CASES 33-34 (1987).
294. Frank F. Flegal & Steven M. Umin, Curbing Discovery Abuse in Civil Litigation: We're Not There Yet, 1981 BYU L. REV. 597, 603-04.
295. Published reports of the Administrative Office of the United States Courts make clear that despite additions of authorized judgeships in 1979, 1988 and again in 1996, caseloads have increased overall. See ADMINISTRATIVE OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD: A FIVE-YEAR RETROSPECTIVE (1997), available in The Federal Judiciary Homepage (visited Oct. 25, 1999) 〈http://www.uscourts.gov/publications. html〉;
296. see also the Annual Reports of the Administrative Office of the United States Courts. In his 1997 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist noted that 1997 saw courts of appeals and bankruptcy filings at their highest rates in history, with both a small increase in civil filings and the largest federal criminal caseload in 60 years in district courts. He stated further, "unless steps are taken to stop or reverse this trend, either the demands placed on the federal Judiciary will eventually outstrip its resources, or the Judiciary will become so large that it will lose its traditional character as a distinctive judicial forum of limited jurisdiction." WILLIAM H. REHNQUIST, THE 1997 YEAR-END REPORT ON THE FEDERAL JUDICIARY, available in The Federal Judiciary Center Homepage (visited Nov. 24, 1999) 〈http://www.uscourts.gov/cj97.htm〉.
297. In his 1997 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist noted that 82 of the 846 Article III judicial offices in the federal judiciary were vacant and that 26 of those judgeships had been vacant for 18 months or more and constituted "judicial emergencies." REHNQUIST, supra note 245; see also FEDERAL JUDICIAL CASELOAD: A FIVE-YEAR RETROSPECTIVE, supra note 245, at 12 (On July 1, 1997, in the U.S. district courts, 73 vacancies existed among the 647 district judgeship positions authorized. Twenty of the vacancies had existed for at least 18 months.").
298. See McKenna & Wiggins, supra note 4, at 799 (quoting John E. Shapard, Oral Presentation at the Federal Judicial Center Research Conference on Civil Discovery (Sept. 1991)).
299. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367-68 (11th Cir. 1997) ("[S]carce judicial resources must be diverted from other cases to resolve discovery disputes."); Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions, supra note 50, at 887.
300. As Judge Keeton said in a discussion at the National Conference on Discovery Reform in 1982: I would like to know if we are talking about a budget or litigating on a budget. The court has to budget the court's limited time and the simple exercise of that discretion, which is what is required in dealing with proportionality, will take court time. Thus, attention will be diverted from other issues for which the court's time might be budgeted. It is being proposed to give more of the limited judicial time to this small percentage of our total case load in which discovery abuse has occurred and to take it away from other cases. How can that be justified? As a judge, must I not consider whether the other cases deserve that time more than this body of cases? If so, the sanction rule will not amount to much because the judge is likely to conclude that he cannot properly give the attention required in order to make considered judgments about sanctions because the discovery cases do not deserve the judge's budgeted time as soon as the other cases pending. The Judge's Role in Discovery, supra note 131, at 181 (emphasis in original).
301. The enactment of the Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1994), which required that arraignments be held within 10 days of indictment and that criminal trials be held within 60 days of arraignment, causing them to jump to the head of the queue on every district judge's docket, resulted in less judicial attention being available for civil dockets. The advent of the Federal Sentencing Guidelines pursuant to the Sentencing Reform Act of 1984 (title II of the Comprehensive Crime Control Act of 1984), 18 U.S.C. §§ 3551-3559 (1994), had a similar effect on civil dockets, since mandatory minimum sentences made plea bargains less attractive to accused persons, more of whom chose to take their chances at trial.
302. See Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions, supra note 50, at 887;
303. see also The Judge's Role in Discovery, supra note 131, at 181 (quoting Judge Keeton); id. at 117 ("[I]t is presumptuous for the judge to believe that on the basis of a ten minute or even one hour presentation, he truly understands the parameters of the litigation." (quoting Judge Gerard L. Goettel)).
304. See Brazil, The Adversary Character of Civil Discovery, supra note 35, at 1348-49.
305. See Diehl v. H.J. Heinz Co., 901 F.2d 73, 74 (7th Cir. 1990) (referring to discovery dispute euphemistically as a "spitting match"); Trustmark Life Ins. Co. v. University of Chicago Hosps., No. 94-C4692, 1996 U.S. Dist. LEXIS 1614, at *25-26 (N.D. Ill. Feb. 14, 1996) (stating that discovery battles are "distasteful and wasteful in general"); see also Shugrue, supra note 11, at 13.
306. Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions, supra note 50, at 886-87.
307. See LOUIS HARRIS & ASSOCS., supra note 243, at 38, 91-92.
308. Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No-CIV-87-2385-A (W.D. Okla. Feb. 24, 1989)).
309. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.7 (1983);
310. see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 5-102 (1980).
311. Among the reasons commonly proffered in opposition to proposals to increase the size of the federal judiciary are the asserted impossibility of maintaining a judiciary of the highest quality; asserted excessive costs; the supposed inconsistency of law that would result; and supposed reduction in the collegiality of appellate courts. See Prepared Statement of Jon O. Newman, United States Circuit Judge, Before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Federal News Service, Sept. 4, 1997, available in LEXIS, News Library, Fednew File;
312. Prepared Statement of Gerald Bard Tjoflat, United States Circuit Judge, Before the Senate Judiciary Committee on Administrative Oversight and the Courts, Subcommittee on "Conserving Judicial Resources: Considering the Appropriate Allocation of Judgeships in the United States Court of Appeals for the Fourth Circuit," Federal News Service, Feb. 5, 1997, available in LEXIS, News Library, Fednew File;
313. Jon O. Newman, Size of Federal Judiciary Threat to Quality, CONN. L. TRIB., Nov. 4, 1991, at 3;
314. see also GORDON BERMANT ET AL., FEDERAL JUDICIAL CTR., IMPOSING A MORATORIUM ON THE NUMBER OF FEDERAL JUDGES: ANALYSIS OF ARGUMENTS AND IMPLICATIONS 23-54 (1993);
315. Laura E. Little, The Future of the Federal Judiciary, 70 TEMPLE L. REV. 1151, 1151 (1997);
316. William M. Richman & William L. Reynolds, Elitism, Expediency and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273, 297-334 (1996).
317. There is an extensive literature on the possibility of using masters to supervise discovery and other aspects of pretrial litigation. See Wayne D. Brazil, Authority to Refer Discovery Tasks to Special Masters: Limitations on Existing Sources and the Need for a New Federal Rule, in MANAGING COMPLEX LITIGATION: A PRACTICAL GUIDE TO THE USE OF SPECIAL MASTERS 305 (Wayne D. Brazil et al. eds., 1983) [hereinafter Brazil, Authority to Refer Discovery Tasks];
318. FEDERAL JUDICIAL CTR., MANUAL FOR COMPLEX LITIGATION, THIRD § 21.52, at 111-14 (1995);
319. Frederick B. Lacey & Jay G. Safer, The Authority, Roles, Responsibilities, and Utilization of Special Masters, in 2 BUSINESS AND COMMERCIAL LITIGATION IN FEDERAL COURTS 620, 620 (Robert L. Haig ed. 1998);
320. Wayne D. Brazil, Referring Discovery Tasks to Special Masters: Is Rule 53 a Source of Authority and Restrictions?, 1983 AM. B. FOUND. J. 143 [hereinafter Brazil, Referring Discovery Tasks to Special Masters];
321. Wayne D. Brazil, Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?, 53 U. CHI. L. REV. 394 (1986) [hereinafter Brazil, Special Masters in Complex Cases];
322. Edward H. Cooper, Civil Rule 53: An Enabling Act Challenge, 76 TEX. L. REV. 1607, 1607-09 (1998);
323. Irving R. Kaufman, Use of Special Pre-Trial Masters in the "Big" Case, 23 F.R.D. 572 (1959); Weinstein, supra note 222.
324. See Wayne D. Brazil, Special Masters in the Pretrial Development of Big Cases: Potential and Problems, in MANAGING COMPLEX LITIGATION, supra note 259, at 1, 19 [hereinafter Brazil, Special Masters in Pretrial Development].
325. See Brazil, Special Masters in Complex Cases, supra note 259, at 411.
326. See Brazil, Authority to Refer Discovery Tasks, supra note 259, at 22-23; see also Cooper, supra note 259, at 1623.
327. See Brazil, Special Masters in Complex Cases, supra note 259, at 421-22.
328. See Brazil, Authority to Refer Discovery Tasks, supra note 259, at 306;
329. Brazil, Referring Discovery Tasks to Special Masters, supra note 259, at 143-85.
330. See La Buy v. Howes Leather Co., 352 U.S. 249, 258-59 (1957).
331. See Liptak v. United States, 748 F.2d 1254, 1257 (8th Cir. 1984); see also Jack Walters & Sons Corp. v. Morton Bldg. Inc., 737 F.2d 698, 712 (7th Cir. 1984); Weissman v. Fruchtman, No. 83 Civ. 8958 (PKL), 1986 WL 15669, at *22-23 (S.D.N.Y. Oct. 31, 1986).
332. See Weissman, 1986 WL 15669, at *22-23.
333. See Cooper, supra note 259, at 1608.
334. These include: (1) the powers granted by the Federal Rules of Civil Procedure to impose "an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation[,]" FED R. CIV. P. 26(a)(3), in cases of violations of the signing/certification duty of Rule 26(g), as well as the reasonable expenses sanctions of Rule 37(a), (c) and (d), and the various preclusion sanctions of Rule 37(b)(2), see supra note 200; (2) the power pursuant to 28 U.S.C. § 1927 to require a person who "multiplies the proceedings in any case unreasonably and vexatiously . . . to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct[,]" 28 U.S.C. § 1927 (1994); and (3) the inherent power of courts to sanction bad-faith conduct that abuses the judicial process, see Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991). In addition, courts have the inherent power to regulate the behavior of lawyers admitted to their bars, as well as the power (and arguably the duty) to refer matters in appropriate circumstances to disciplinary committees and prosecutors.
335. See Stars' Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d 521, 524-25 (9th Cir. 1997) (stating that default judgment was an appropriate sanction for defendant's repeated failure to submit to deposition); Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 671-72 (7th Cir. 1996) (deciding that it was not an abuse of discretion to bar defendant's expert testimony as a sanction for discovery violations); Phipps v. Blakeney, 8 F.3d 788, 790-96 (11th Cir. 1993) (concluding that dismissal was an appropriate sanction for plaintiff's repeated failure to attend discovery conferences or depositions); Chilcutt v. United States, 4 F.3d 1313, 1325 (5th Cir. 1993) (concluding that the district court's sanction of deeming that plaintiff established the prima facie elements of the liability claim was an appropriate sanction for discovery abuses); cf. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054, 1079-85 (Wash. 1993) (en banc) (directing the trial court to impose sanctions on defense counsel for discovery abuse).
336. See Bonds v. District of Columbia, 93 F.3d 801, 809 (D.C. Cir. 1996) (reversing discovery sanction precluding defendant from offering witnesses at trial as abuse of discretion because the court did not consider whether the sanction was necessary to further interests other than deterrence and if not, whether less severe sanctions would have been more proportionate to the violation); Dahl v. City of Huntington Beach, 84 F.3d 363, 366-67 (9th Cir. 1996) (reversing dismissal of action as sanction but affirming imposition of monetary sanctions); Wouters v. Martin County, 9 F.3d 924, 934 (11th Cir. 1993) (holding dismissal an inappropriate sanction for discovery violations); Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 444-48 (5th Cir. 1992) (reversing the lower court's use of Rule 11, Rule 26(g), § 1927, and the inherent power of the court to impose monetary sanctions and public reprimand on plaintiff and his lawyers); Walton v. Throgmorton, 652 N.E.2d 803, 807 (Ill. App. Ct. 1995) (stating that dismissal with prejudice for abuse of discovery is to be employed only as last resort - in cases "where the actions of a party show a deliberate, contumacious, or unwarranted disregard of the court's authority"). Awards of serious sanctions for discovery violations are sometimes reversed on due process grounds. See Crowe v. Smith, 151 F.3d 217, 226-29 (5th Cir. 1998) (reversing imposition of fines on defendants because court did not use procedures adequate for a criminal contempt proceeding), cert. denied, 119 S. Ct. 2047 (1999); In re Tutu Wells Contamination Litig., 120 F.3d 368, 372, 377-381 (3d Cir. 1997) (holding that suspending defense counsel as discovery sanction without affording particularized notice violated counsels' due process rights);
337. In re E.I. DuPont de Nemours & Co.-Benlate Litig., 99 F.3d 363, 368-69 (11th Cir. 1996) (reversing order imposing sanctions of $115 million for repeated violation of discovery orders since sanctions were punitive hence criminal in nature, and had been imposed without constitutional protections accorded criminal contempt defendants).
338. See, e.g., Richard Pliskin, "Rambo" Litigation Tactics Sanctioned, N.J.L.J., July 25, 1994, at 8 (reporting that U.S. District Court Judge William Bassler, in addition to imposing sanctions of $70,000 of attorney's fees against attorney for harassing litigation tactics, also "referred [lawyer's] conduct to state and federal ethics officials for disciplinary review and to the U.S. Attorneys' Offices in Newark and Manhattan for criminal investigation"). But see McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 904-06 (5th Cir. 1995) (explaining that grievance committee of Texas bar decided that no disciplinary violation had occurred, despite trial court's finding that defendant's in-house counsel had engaged in discovery violations by destroying documents responsive to plaintiff's requests for production of documents).
339. Obstructing a deposition or destroying documents that are responsive to a Rule 34 request, even if committed beyond the limits of a court's territorial reach by a lawyer who is not a member of the bar of the court in which the proceedings are pending, should be considered a tortious act sufficient to bring the conduct within the reach of the long-arm statutes of most, if not all states, hence state and also federal courts, assuming service of appropriate process on the offending lawyer.
340. Two well-known examples are the Berkey Photo-Kodak civil antitrust litigation, see Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979), and the DuPont-Benlate litigation, see In re E.I. DuPont de Nemours & Co.-Benlate Litig., 99 F.3d at 369 n.7.
341. In Kodak, a partner at a well-known New York City law firm eventually pleaded guilty to one count of obstruction of justice for suppressing reports of an expert witness that should have been produced to the plaintiffs and then lying to the court about it. See Jack Egan, Former Kodak Lawyer Charged With Contempt, WASH. POST, Sept. 19, 1978, at D9.
342. In one of the Benlate cases, the Eleventh Circuit, in reversing the district court's imposition of a $115 million fine against DuPont for withholding evidence during the trial, also suggested that a criminal investigation of DuPont and its lawyers was called for if it had not already been undertaken. See Milo Geyelin, Fine Against DuPont in Benlate Case Is Overturned by Federal Appeals Court, WALL ST. J., Oct. 21, 1996, at B9.
343. DuPont eventually paid a fine of $11.25 million to end the criminal action. See Torri Still, DuPont Suits Surface Again, LEGAL INTELLIGENCER, June 16, 1999, at 4.
344. See infra notes 297-302.
345. See supra pp. 554-55.
346. As Justice Stephen G. Crane stated in his handbook for the New York State Supreme Court, "[J]udges complain that there are too many discovery motions and too much indifference to discovery orders, yet many a judge will let the culprit off to rob again." STEPHEN G. CRANE, HANDBOOK ON CASE MANAGEMENT 49 (1996).
347. See FED. R. CIV. P. 26(g), advisory committee's note to the 1983 amendment; see also Rosenberg, supra note 77, at 496-97.
348. See, e.g., Marianne Lavelle, Rockwell Slapped Over Access to Shuttle Papers, NAT'L L.J., Aug. 14, 1995, at A9 (describing how the district judge imposed $10,000 in penalties on Rockwell and shifted all attorney's fees of a former employee who litigated access to documents, as well as $3,000 in sanctions against Rockwell's Houston law firm). The Judge said he would stop short of entering judgment against Rockwell for discovery abuse including repeated disobedience of court orders and gave Rockwell and its officials "one final opportunity to conduct themselves properly."
349. Marianne Lavelle, Rockwell Slapped Over Access to Shuttle Papers, 1995, at A9 Id.
350. See Murray v. Sevier, 993 F. Supp. 1394, 1405 (M.D. Ala. 1997); Guardian Life Ins. Co. of America, No. Civ. A. 95-3997, 1996 WL 515500, at *2 (E.D. Pa. Aug. 30, 1996) (mem.).
351. No. 93 Civ. 8894, 1996 WL 715532 (S.D.N.Y. Dec. 11, 1996).
352. See id. at *2.
353. See id.
354. Id. at *3.
355. See FED. R. CIV. P. 37(b)(2)(C).
356. To prevail on an ineffective assistance of counsel claim on appeal or in a habeas corpus proceeding, a convicted defendant must show that counsel's derelictions were "of such a kind as to shock the conscience of the court and make the proceedings a farce and a mockery of justice." United States v. Horton, 334 F.2d 153, 155 (2d Cir. 1964) (quoting Smith v. United States, 324 F.2d 436, 439-40 (D.C. Cir. 1963)).
357. No. Civ. A. 7:92-2402-3, 1994 WL 902775 (D.S.C. Feb. 1, 1994).
358. See id. at *1-3.
359. Id. at *5.
360. See id.
361. 168 F.R.D. 102 (D. Mass. 1996).
362. See id. at 103-04. Pursuant to the settlement, counsel would receive $231,700 in attorney's fees, rather than more than $800,000 petitioned for by counsel following the trial. See id. at 104.
363. See id. at 106-14. The court also found that counsel had concealed this information from the court by making arguments that he knew to be false. See id. at 113.
364. See id. at 105-07, 116-17.
365. Id. at 117.
366. Although the media often indulge this fallacy in television shows such as The Practice (ABC television broadcast), which often lauds a small firm for taking just about any action at all that helps its clients, could not one have expected greater sophistication from a federal court?
367. Although the concept of the overly aggressive, contentious, antagonistic and obstructive lawyer is well known, the name Rambo derives from the character John Rambo, a U.S. Green Beret veteran in the novel First Blood, DAVID MORELL, FIRST BLOOD (1972),
368. and played by Sylvester Stallone in the films FIRST BLOOD (Orion 1982),
369. RAMBO: FIRST BLOOD PART II (Orion 1985)
370. RAMBO III (Tristar 1988).
371. See Thomas M. Reavley, Rambo Litigators: Pitting Aggressive Tactics Against Legal Ethics, 17 PEPP. L. REV. 637, 637 n.4 (1990).
372. See Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 LOY. L.A. L. REV. 81, 94-96 (1991).
373. See Reavley, supra note 297, at 638.
374. See PERLMUTTER, supra note 11, at 51-64, 71-77.
375. See In re Daniels, 570 A.2d 416, 428 (N.J. 1990) (noting that "hardball, 'Rambo-style' litigation tactics [are] on the rise"); The Tenth Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 146 F.R.D. 205, 216-32 (1992) (discussing the "Rambo litigator");
376. Sidney A. Fitzwater, Toward a Renaissance of Professionalism in Trial Advocacy, 20 TEX. TECH. L. REV. 787, 789 (1989) (noting a proliferation of "hardball," "Rambo-like" litigation tactics).
377. In a candid and amusing reflection on his career at a seminar for judges held in 1958, Bruce Bromley, longtime head of the litigation department at the Cravath firm, who in 1949 had served at Governor Thomas E. Dewey's appointment as a Judge of the New York Court of Appeals, wrote: By big case I mean protracted case. Now I was born, I think, to be a protractor. . . . I quickly realized in my early years at the bar that I could take the simplest antitrust case. . . and protract it for the defense almost to infinity. [Bromley went on to describe his first motion picture block booking case.] We won that case and as you know my firm's meter was running all the time - every month for fourteen years. Bruce Bromley, Judicial Control of Antitrust Cases, Proceedings of the Seminar on Protracted Cases for United States Judges, 23 F.R.D. 417, 417-18 (1958) (emphasis added); see also United States v. Cutler, 58 F.3d 825, 840 (2d Cir. 1995) (identifying Lord Henry Brougham as an "early apostle of what today would be known as Rambo litigation tactics").
378. See Wayne D. Brazil, Ethical Perspectives on Discovery Reform, 3 REV. LITIG. 51, 58-59 (1982) ("The assumption that a lawyer inevitably serves the best interests of the system by vigorously pursuing client interests through all methods not currently deemed unlawful strikes me as fatuous. It is not un-lawful to disclos[e] nothing until . . . compelled by carefully crafted discovery probes to do so.").
379. See Jerome J. Shestack, ABA Leader Promotes Professionalism, N.J. LAW., Dec. 8, 1997, at 6 ("We need to resist the Rambo-type tactics in which civility is mocked and ruckus is routine.");
380. see also Roger Abrams, Law Schools Must Teach Professionalism - Now, N.J.L.J., Dec. 4, 1995, at 27 ("[L]ack of civility and courtesy among lawyers has corroded the practice of law.");
381. Infectious Lawyers, N.J.L.J., Apr. 7, 1997, at 30 ("The virus has not been assigned a specific name, although in its various forms it has been called hardball, scorched earth or Rambo litigation. It is characterized by incivility and unprofessionalism.").
382. This is not always the case, however. See, e.g., In re Jordan Schiff, No. HP 22/92 (N.Y. Sup. Ct. Feb. 2, 1993), reprinted in STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 775-79 (5th ed. 1998).
383. See generally Anita Bernstein, Reciprocity, Utility and the Law of Aggression, Michigan Legal Theory Workshop, University of Michigan Law School (1999) (unpublished manuscript, on file with author).
384. Doubtless one should make the philosophical point that eventually one becomes the way one acts. This is easy to agree with in the case of aggressive lawyers occasionally encountered who exult in the self-description, "We pride ourselves on being assholes. It's part of the firm culture." Lawyers Wage Civil War, CHI. DAILY L. BULL., Oct. 28, 1991, at 20.
385. The amount of the judgment was $10.53 billion, which at the time Texaco's action challenging the constitutionality of the supersedeas bond provisions of the State of Texas reached the Supreme Court of the United States was estimated to exceed $11 billion, including prejudgment interest. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 4 (1987). The case ultimately settled for $3 billion, of which Jamail's fee was estimated to be $345 million. See Texaco-Penzoil Battle Is Over, J. COM., Apr. 8, 1988, at 11B;
386. The 400, FORBES, Oct. 13, 1997, at 256.
387. 637 A.2d 34, 51-56 (Del. 1994). The Addendum quotes the following widely-reproduced excerpt from the deposition of Hugh Liedtke, a Paramount director, defended by Mr. Jamail: A. [Mr. Liedtke] I vaguely recall [Mr. Oresman's letter] . . . . I think I did read it, probably. . . . . Q. (By Mr. Johnston [Delaware counsel for QVC] ) Okay. Do you have any idea why Mr. Oresman was calling that material to your attention? MR. JAMAIL: Don't answer that. How would he know what was going on in Mr. Oresman's mind? Don't answer it. Go on to your next question. MR. JOHNSTON: No, Joe - MR. JAMAIL: He's not going to answer that. Certify it. I'm going to shut it down if you don't go to your next question. MR. JOHNSTON: No. Joe, Joe - MR. JAMAIL: Don't "Joe" me, asshole. You can ask some questions, but get off of that. I'm tired of you. You could gag a maggot off a meat wagon. Now, we've helped you every way we can. MR. JOHNSTON: Let's just take it easy. MR. JAMAIL: No, we're not going to take it easy. Get done with this. MR. JOHNSTON: We will go on to the next question. MR. JAMAIL: Do it now. MR. JOHNSTON: We will go on to the next question. We're not trying to excite anyone. MR. JAMAIL: Come on. Quit talking. Ask the question. Nobody wants to socialize with you. MR. JOHNSTON: I'm not trying to socialize. We'll go on to another question. We're continuing the deposition. MR. JAMAIL: Well, go on and shut up. MR. JOHNSTON: Are you finished? MR. JAMAIL: Yeah, you - MR. JOHNSTON: Are you finished? MR. JAMAIL: I may be and you may be. Now, you want to sit here and talk to me, fine. This deposition is going to be over with. You don't know what you're doing. Obviously someone wrote out a long outline of stuff for you to ask. You have no concept of what you're doing. Now, I've tolerated you for three hours. If you've got another question, get on with it. This is going to stop one hour from now, period. Go. MR. JOHNSTON: Are you finished? MR. THOMAS: Come on, Mr. Johnston, move it. MR. JOHNSTON: I don't need this kind of abuse. MR. THOMAS: Then just ask the next question. Q. (By Mr. Johnston) All right. To try to move forward, Mr. Liedtke, . . . I'll show you what's been marked as Liedtke 14 and it is a covering letter dated October 29 from Steven Cohen of Wachtell, Lipton, Rosen & Katz including QVC's Amendment Number 1 to its Schedule 14D-1, and my question - A. No. Q. - to you, sir, is whether you've seen that? A. No. Look, I don't know what your intent in asking all these questions is, but, my God, I am not going to play boy lawyer. Q. Mr. Liedtke - A. Okay. Go ahead and ask your question. Q. - I'm trying to move forward in this deposition that we are entitled to take. I'm trying to streamline it. MR. JAMAIL: Come on with your next question. Don't even talk with this witness. MR. JOHNSTON: I'm trying to move forward with it. MR. JAMAIL: You understand me? Don't talk to this witness except by question. Did you hear me? MR. JOHNSTON: I heard you fine. MR. JAMAIL: You fee makers think you can come here and sit in somebody's office, get your meter running, get your full day's fee by asking stupid questions. Let's go with it. Id. at 53-54.
388. Jamail has been on Forbes's annual list of the four hundred wealthiest Americans since 1989. In October 1997, his net worth was reported to be $950 million. See The 400, supra note 308, at 256.
389. Although I believe that cooperation is a good thing and that mutual cooperation increases efficiency, I find law school courses in alternative dispute resolution that emphasize "getting to yes" disturbing, since they too often fail even to advert to the fact that lawyers in the real world sometimes use over-aggressiveness and personal nastiness - in short, Rambo tactics - as a strategy in all negotiation situations. Faced with Rambo, a lawyer interested in "getting to yes" will have a difficult time not sacrificing his client's interests, to say nothing of avoiding being eaten alive.
390. Joseph Jamail, for example, has been a generous benefactor of the arts, charities, education and athletics in Texas, see Mary Ann Roser, UT Gets $5 million in Joe Jamail's $17 Million Gift to Arts, Education, AUSTIN AM.-STATESMAN, Sept. 5, 1996, at A1;
391. and is often described in the press as well able to turn on the charm when he wants to. See Roger Parloff, Fare's Fair, AM. LAW., Oct. 1993, at 60;
392. see also Diane Jennings, King of Torts: Corporate Giant Killer? Planet-sized Ego? Joe Jamail Won't Argue the Case, CHI. TRIB., July 25, 1989, at C1.
393. Let's Work Together for a Lawyers' Civility Rights Act, IND. LAW., Aug. 23, 1995, at 7. A lengthier excerpt, including this passage, but with counsel's names changed, is included in PERLMUTTER, supra note 11, at 39-44.
394. Brenda Sapiro, Jamail Unfazed by Delaware Court's Blast, TEX. LAW., Feb. 14, 1994, at 11.
395. See Jerry Urban, State Bar to Review Lawyer Rebuked by Delaware Court, HOUSTON CHRON. Feb. 15, 1994, at A15; see also E-mail from James M. McCormack, Adjunct Professor of Law, University of Texas School of Law, to author (Feb. 22, 1999) (on file with author) (stating that because no public discipline occurred, Mr. Jamail's case was most likely dismissed).
396. Anecdotal evidence suggests that the court's QVC addendum, especially its statement that in cases of misconduct at depositions "Delaware trial courts are 'but a phone call away,'" has had a beneficial prophylactic effect on the conduct of depositions in Delaware. Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 55 (Del. 1994).
397. This retelling is from the homepage of Professor John Lawler of the University of Michigan (visited Nov. 11, 1999) 〈http://www-personal.umich. edu/∼jlawler/aue/sig.html〉.
398. Many of the Nasrudin stories have been collected and published by Idries Shah. See, e.g., IDRIES SHAH, THE EXPLOITS OF THE INCOMPARABLE MULLA NASRUDIN (Octagon Press 1966).
399. Brazil, Civil Discovery, supra note 9, at 829.
400. Robert E. Keeton, Times Are Changing for Trials in Court, 21 FLA. ST. U. L. REV. 1, 15 (1993) (emphasis added).
401. Problems of stonewalling and Rambo litigation derive in large part from the development of that ethic, but they also respond to perceived client needs and desires: some clients demand overly aggressive litigation tactics, while many would like to bury or obscure "bad" or embarrassing facts and incriminating evidence. Many lawyers strive to provide what their clients desire.
402. See supra note 21 and accompanying text.
403. For the distinction between "tinkering" and "global" changes, see Transcript of the "Alumni" Panel on Discovery Reform, 39 B.C. L. REV. 809, 814-26 (1998).
404. For a description of the fact discovering and evidence gathering functions of these systems, see Geoffrey C. Hazard, Jr., Discovery and the Role of the Judge in Civil Law Jurisdictions, 73 NOTRE DAME L. REV. 1017 (1998).
405. Professor Cooper informs me that "[s]ome of the proponents of the 1993 version of initial disclosure hoped that the combination of the Rule 26(f) conference with the obligation to disclose damaging information would begin the process of changing the ethic of representation[,]" and that many litigators report that the Rule 26(f) conference, when used, has proved the most effective of recent discovery reforms. Comments by Edward H. Cooper to the author on a draft of this Article presented to the University of Michigan Law School Legal Theory Workshop on Mar. 15, 1999 (on file with author).