Litigation discovery cannot be optimal but could be better: The Economics of improving discovery timing in a digital age

Duke Law Journal

Volumn 58, Issue 6, 2009, Pages 889-954

  Moss, Scott A ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 68049095996     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (329)

1. Joseph D. Steinfield & Robert A. Bertsche, Recent Developments in the Law of Access - 1998, 540 PLI/PAT. 53, 107 (1998); see also Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) ("Because employers rarely leave a paper trail-or 'smoking gun'-[of] discriminatory intent,... plaintiffs often must build their cases from pieces of circumstantial evidence which cumulatively undercut the [defendant's] credibiLity.... [R]efusal to compel [discovery]... deprived Hollander of evidence potentially helpful to... assembl[ing] such a quantum of circumstantial evidence...." (citations omitted));
2. Jon W. Green & Kyle M. Francis, Age Discrimination in Employment: A Plaintiff's Perspective, 522 PLI/Lit. 227, 238 (1995) ("Discovery is the most crucial phase of age discrimination actions.").
3. Steinfield & Bertsche, supra note 1, at 107.
4. Green & Francis, supra note 1, at 238.
5. Thomas W. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 544-46, 548-49 (1998) (noting also that only 15 percent of cases had no discovery, and 46 percent of those still had informal evidence exchange).
6. Richard Marcus, Assoc. Reporter, Fed. Judicial Conference Advisory Comm. on Civil Rules, Comment at the American Association of Law Schools 2008 Meeting, Section on Civil Procedure (Jan. 4, 2008).
7. For example, the Practicing Law Institute's annual conference, Electronic Discovery and Retention Guidance for Corporate Counsel, yields a lengthy symposium issue. See Symposium, Electronic Discovery and Retention Guidance for Corporate Counsel 2007, 766 PLI/Lit. 13 (2007) (17 articles);
8. Symposium, Electronic Discovery and Retention Guidance for Corporate Counsel 2006, 747 PLI/Lit. 9 (2006) (13 articles)
9. Symposium, Electronic Discovery and Retention Guidance for Corporate Counsel 2005, 733 PLI/Lit. 9 (2005) (14 articles).
10. An ExpressO search of top fifty Law school specialty Reviews found thirteen on women's or gender issues, seven on constitutional or Civil rights, and only one on Litigation.
11. For a discussion on the need for discovery to prove hidden discriminatory intent circumstantially, see supra note 1 and accompanying Text.
12. For a discussion of the proposals to limit discovery and cost-shifting proposals, see infra Parts I.B, II.A.
13. Patricia A. Bronte, Managing Electronic Discovery Successfully in Insurance Coverage Litigation, 758 PLI/Lit. 55, 75 (2007) (arguing for attorneys to "master the brave new world of electronic discovery")
14. Richard L. Marcus, E-Discovery & Beyond: Toward Brave New World or 1984?, 25 Rev. Litig. 633, 634 (2006).
15. Harvey L. Kaplan, Electronic Discovery in the 21st Century: Is Help on the Way?, 733 PLI/Lit. 65, 67 (2005).
16. See, e.g., Siemens Solar Indus. v. Atl. Richfield Co., No. 93 Civ. 1126 (LAP), 1994 WL 86368, at *2 (S.D.N.Y. Mar. 16, 1994) (recounting the plaintiff's discovery of e-mails "Reveal[ing] beyond peradventure" that the defendant praised its new product yet knew it "was not commercially viable").
17. See Marnie H. Pulver, Note, Electronic Media Discovery: The Economic Benefit of Pay-Per-View, 21 Cardozo L. Rev. 1379, 1409-12 (2000) (recounting examples of these sorts of digital evidence).
18. Fed. R. Civ. P. 26(b)(2)(B). For the details of these amendments, see infra note 74.
19. Bronte, supra note 10, at 59; see also Christopher S. Rugaber, E-Documents Subject to Stricter Storage, Sun-Sentinel (Fort Lauderdale, Fla.), Dec. 2, 2006, at 3D (noting that companies pay e-discovery consultants over $1 billion a year and must have Lawyers Review email and "things more difficult to track, like digital photos...[on] cell phones and information on removable memory cards").
20. Kaplan, supra note 11, at 67.
21. Pulver, supra note 13, at 1409-12.
22. William R. Maguire, Current Developments in Federal Civil Discovery Practice: Setting Reasonable Limits in the Digital Era, 754 PLI/Lit. 169, 175 (2007).
23. See infra notes 87-88.
24. Panel Discussion, Managing Electronic Discovery: Views from the Judges, 76 Fordham L. Rev. 1, 4 (2007) (comments of Lee H. Rosenthal, J., United States District Court for the Southern District of Texas).
25. Richard L. Marcus, Confronting the Future: Coping with Discovery of Electronic Material, 64 Law & Contemp. Probs. 253, 258 (Spring/Summer 2001).
26. Lemberger v. Westinghouse Elec. Corp., 76-C-552(JW), 1976 WL 834, at *5 (E.D.N.Y. Nov. 1976).
27. See Richard Allan Horning, Electronically Stored Evidence: Answers to Some Recurring Questions Concerning Pretrial Discovery and Trial Usage, 41 Wash. & Lee L. Rev. 1335, 1344 (1984) ("[D]uplicati[ng] electronic data is relatively inexpensive...compared with the cost of re-inputing....").
28. See Fed. R. Civ. P. 26(b)(2)(C)(iii). For a discussion of this proportionaLity rule, see infra Part I.A.
29. Fed. R. Civ. P. 26(b)(2)(B). For a discussion of this e-discovery rule, see infra Part I.A.
30. See infra Part II.A.
31. For a discussion of the proportionaLity amendments and reform efforts, including efforts by U.S. attorneys general, that preceded them, see infra notes 42-43. For a discussion of the Manual for Complex Litigation proposals published by Federal Judicial Center, see infra notes 49-51 and accompanying Text. For a discussion of the e-discovery amendments, see infra notes 74-77 and accompanying Text.
32. See infra Part II.B.3.c.
33. See infra Part II.B.3.c.
34. See infra note 130 and accompanying Text.
35. Harry Belafonte and Odetta are probably the most famous pair to have sung this duet. Harry Belafonte, a Man and his Music (RCA Records 1990) (track 5). The author first heard it sung by muppets on The Muppet Show in the 1970s but, sadly, cannot find a video clip or proper citation.
36. See Marcus, supra note 21, at 256 ("The retrenchment effort.... [has] two themes... the principle of proportionaLity and quantitative limits...."). For a discussion of rules applying proportionaLity and numerical limits, see infra notes 43, 122 and accompanying Text.
37. The exception is that courts allow prediscovery limited-scope summary judgment motions in certain cases, such as those limited to governmental immunity defenses. See infra note 199 and accompanying Text.
38. This Article does not discuss all discovery reforms, just one problem that cannot be fully fixed (the impossibiLity of optimal discovery decisions) and a partial fix well targeted to that information-timing problem (postponing some discovery until summary judgment). For a discussion of other proposals, such as discovery sampling or cost shifting, see infra notes 218-24 and accompanying Text.
39. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (disallowing the prediscovery dismissal of a discrimination claim because the Federal rules' "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions...to dispose of unmeritorious claims").
40. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) ("[T]he presumption is that the responding party must bear the expense of complying with discovery requests....").
41. Fed. R. Civ. P. 26(b)(1); see also Oppenheimer Fund, 437 U.S. at 351 (noting that discovery relevance "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case").
42. The early discovery decisions following the 1938 adoption of the Federal Rules of Civil Procedure illustrate this limited nature of early-to-mid-twentieth century discovery. See, e.g., Harris v. Sunset Oil Co., 2 F.R.D. 93, 93 (W.D. Wash. 1941) (ordering documents produced "at [parties'] respective places of business during reasonable office hours");
43. Compagnie Continentale D'Importation v. Pac. Argentine Braz. Line, Inc., 1 F.R.D. 388, 389 (S.D.N.Y. 1940) ("[Document] inspection should be held at defendant's convenience... at its place of business.");
44. Gielow v. Warner Bros. Pictures, Inc., 26 F. Supp. 425, 426 (S.D.N.Y. 1938) (ordering party "to exhibit the documents...but at the office of the complainant; not to be removed therefrom").
45. See, e.g., Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. Rev. 1295, 1332 (1978) (noting that the Judicial Conference and American Bar Association Committee had the "primary concern... [of] curbing the cost of discovery and reducing the ways discovery can be abused")
46. Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. Rev. 747, 753-68 (1998) (recounting drives to limit discovery);
47. Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C. L. Rev. 691, 744-45 (1998) (discussing the proportionaLity amendments that later became part of Rule 26(b)(2)(C)(iii)).
48. Fed. R. Civ. P. 26(b)(2)(C)(iii).
49. 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice & Procedure: CivIL § 2008.1, at 54 (2d ed. Supp. 2008) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
50. See, e.g., Dunn v. Midwestern Indemn., 88 F.R.D. 191, 193, 196 (S.D. Ohio 1980) (granting the plaintiffs, who had claimed a widespread "pattern or practice" of discrimination, a search that could take thousands of hours of the defendant's "computer systems, including access to and information about... equipment, raw data, programs, data management systems, and the by-products of their analyses").
51. See, e.g., United States v. Greenlee, 380 F. Supp. 652, 658 (E.D. Pa. 1974) (denying a criminal defendant a requested weeks-long search of Internal Revenue Service computers that would have created risks of security breaches, privacy violations, and "serious interruption of the operations of the IRS").
52. Dunn, 88 F.R.D. at 198.
53. See supra note 15 and accompanying Text; infra notes 87-88.
54. Pulver, supra note 13, at 1386.
55. Manual for Complex Litigation (Third) § 21.433 (1995).
56. See, e.g., In re Brand Name Prescription Drugs Antitrust Litig., 94 C 897, 1995 U.S. Dist. Lexis 8281, at *2-3 (N.D. Ill. June 13, 1995) (mem.) (granting class action plaintiffs' motion to compel the defendant to produce computer-stored e-mail at the defendant's own expense, estimated at $50,000 to $70,000, and expressly rejecting an alternative suggested by the Manual of Complex Litigation).
57. Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309 (S.D.N.Y. 2003). Judge Scheindlin, who authored Zubulake I, issued several later relevant opinions: Zubulake v. UBS Warburg LLC (Zubulake II), 230 F.R.D. 290, 290 (S.D.N.Y. 2003);
58. Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280, 281 (S.D.N.Y. 2003).
59. Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 214 (S.D.N.Y. 2003); and Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422, 424 (S.D.N.Y. 2004).
60. Zubulake I, 217 F.R.D. at 322.
61. 28 U.S.C. § 1291 (2006) (authorizing appeal only of "final decisions" in cases); see also, e.g., Church of Scientology of Cal. v. United States, 506 U.S. 9, 18 n.11 (1992) ("As a general rule, a district court's order enforcing a discovery request is not a 'final order' subject to appellate Review. A party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in Contempt, and then appeal the Contempt order.").
62. Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, 41 B.C. L. Rev. 327, 378 (2000).
63. Benjamin D. Silbert, Note, The 2006 Amendments to the Rules of Civil Procedure: Accessible and Inaccessible Electronic Information Storage Devices, Why Parties Should Store Electronic Information in Accessible Formats, 13 Rich. J.L. & Tech. 3, ¶ 18 (2007), http://Law.Richmond.edu/jolt/v13i3/article14.pdf.
64. See, e.g., MultiTechnology Servs., L.P. v. Verizon Sw., No. Civ.A. 4:02-CV-702-Y, 2004 WL 1553480, at *1 (N.D. Tex. July 12, 2004) (ordering cost shifting to requesting party even though Zubulake I "weighs against shifting any expense" because "Zubulake is a district court opinion without binding authority").
65. Panel Discussion, supra note 20, at 24 (comments of James C. Francis IV, J., United States District Court for the Southern District of New York) (discussing use of multifactor tests in e-discovery disputes and arguing that "it depends on whether you adopt Judge Scheindlin's view [in Zubulake] of a hierarchy or whether you think... [the] factors will probably play out differently in different cases. I am resistant to the hierarchy approach because my fear is that the factor at the top of the hierarchy will almost always wash out the other[s]").
66. Working Group on Elec. Document Retention & Prod., Sedona Conference, the Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d ed. 2007) [hereinafter SEDONA], available at http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf. Sedona produced a draft in 2003, Revised it after public comment in 2004, updated it minimally in 2005, and produced a 2007 SEcond Edition incorporating the 2006 e-discovery amendments to the Federal Rules. See Thomas Y. Allman, the Sedona Principles after the Federal Amendments: The SEcond Edition (2007), at 1 n.3, 2-3 (2007), http://www.thesedonaconference.org/content/miscFiles/2007Summaryof SedonaPrinciples2ndEditionAug17assentforWG1.pdf.
67. Sedona, supra note 61, at 67.
68. "Active data is typically stored on local hard drives, networked servers, and distributed devices or offline archival sources from which information can be accessed without a special restoration effort." Allman, supra note 61, at 6-7. "Information stored solely for disasterrecovery purposes, 'legacy' data retained in obsolete systems, and deleted or fragmentary information that can be restored only through extraordinary efforts" ordinarily are "unduly burdensome and costly to access." Id. at 5.
69. E.g., Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309, 320 n.61, 321 n.67 (S.D.N.Y. 2003).
70. Allman, supra note 61, at 2.
71. Tex. R. Civ. P. 196.4.
72. Allman, supra note 61, at 9.
73. Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309, 324 (S.D.N.Y. 2003).
74. See id. at 322 (noting factors such as the "extent to which the request is specifically tailored to discover relevant information... [and] [t]he relative benefits to the parties of obtaining the information"); see also AAB Joint Venture v. United States, 75 Fed. Cl. 432, 444 (2007) ("Defendant shall bear the costs of restoration of the initial sample of back-up tapes and screening the sample to identify responsive documents. The parties will then have an opportunity to argue... [whether] additional restoration of back-up tapes is likely to lead to production of relevant evidence and consequently who should bear the cost....").
75. Three rules primarily control e-discovery. Fed. R. Civ. P. 26(a)(1)(A)(ii) (requiring initial disclosures to give locations of documents and "electronically stored information" (ESI)); id. 34(a)(1)(A) (deeming ESI part of "document" demands and allowing ESI testing or sampling); id. 34(b) (allowing parties to "specify the form... in which electronically stored information is to be produced," with default rule that ESI be produced as "ordinarily maintained" or in form "reasonably usable"); id. 45 (allowing ESI discovery from nonparties).
76. See Panel Discussion, supra note 20, at 9-10 (comments of Lee H. Rosenthal, J., United States District Court for the Southern District of Texas) (explaining that it is "clear that the key is proportionaLity" in the new e-discovery rule, because its "good cause determination must be based on the proportionaLity limits that [already] have been in the rules").
77. Fed. R. Civ. P. 26(b)(2)(B).
78. See, e.g., Horning, supra note 26, at 1344 (proposing that courts more often require production of digital rather than paper data, as well as that courts more often allow requesting parties to require that producing parties put that data into specific forms and faciLitate interpretation of complex data)
79. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, 615-18 (2001) (proposing more cost shifting to parties requesting costly e-discovery)
80. Pulver, supra note 13, at 1386 (same).
81. See supra notes 42-44 and accompanying Text.
82. Wright et al., supra note 44, § 2008.1, at 121; see also Ronald J. Hedges, A View from the Bench and the Trenches: A Critical Appraisal of Some Proposed Amendments to the Federal Rules of Civil Procedure, 227 F.R.D. 123, 127 (2005) ("[T]he proportionaLity principle of Rule 26(b)(2)... is not being utilized by judges....").
83. Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73 (D. Mass. 1976).
84. See, e.g., Sallis v. Univ. of Minn., 408 F.3d 470, 477-78 (8th Cir. 2005) (upholding, in claims of racially discriminatory failure to promote and hostile work environment, a ruling that "discovery must be limited, in both its temporal and geographical reach," to just complaints in plaintiff's department for one year, and that plaintiff could not obtain discovery of complaints at all departments, despite the plaintiff's argument that complaints "were contained in an easily accessible, central database, and he experienced discrimination at the hands of other [university] departments," because the request was "unduly burdensome")
85. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 317, 319, 320 (7th Cir. 2003) (upholding, in claim of "systematic elimination of older employees", denial of discovery of statistical data, including records of all employees defendant terminated over nine years, because of courts' "'substantial discretion to curtail the expense and intrusiveness of discovery' in limiting... broad discovery of personnel files" (quoting Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994)))
86. EEOC v. D.C. Pub. Sch., 217 F.R.D. 12, 13, 15 (D.D.C. 2003) (denying, in a claim of age discrimination in the termination of a teacher during a reduction in force, a request for "teaching disciplines of each teacher... [in the] academic year" when the plaintiff was terminated, when data was "perhaps retrievable [only] from a search of every personnel file," which "would be oppressive");
87. Lee v. Executive Airlines, Inc., 31 F. Supp. 2d 1355, 1356 (S.D. Fla. 1998) (denying a race discrimination plaintiff's requests as to all employees "disciplined but not terminated for... time card infractions" (plaintiff's alleged offense) over five years, when discovery "would require extensive searches of files outside of the locations" plaintiff worked);
88. Aramburu v. Boeing Co., 885 F. Supp. 1434, 1442-44 (D. Kan. 1995) (denying a race and disabiLity discrimination plaintiff discovery that would take 240 hours to procure 1,500 personnel files, because the "plaintiff's need for the information" was "disproportionate" to the burden).
89. See, e.g., Kowalski v. Stewart, 220 F.R.D. 599, 602 (D. Ariz. 2004) (denying a motion to compel discovery in a prisoner's claim of denial of court-ordered medical care because of the burden of "photocopying, organizing, and taking adequate measures to ensure prisoner confidentiaLity for the pRevious thirteen years of prisoner complaints");
90. Green Constr. Co. v. Kan. Power & Light Co., 732 F. Supp. 1550, 1554 (D. Kan. 1990) (denying a discovery request that would have required examining "nearly 62,400 bond claims" because the discovery's relevance was outweighed by the burden of examining the bond claims, which lacked any "index[ing] or filing code system").
91. See, e.g., United States v. Duke Energy Corp., 214 F.R.D. 392, 393 (M.D.N.C. 2003) (denying the defendant, an energy company challenging an Environmental Protection Agency (EPA) air regulation, discovery from another Federal agency whose "personnel may have been present when some decisions were made by the EPA," because although "statements and positions taken by any EPA employee are relevant," the "burden to the [plaintiff] far outweighs the relevance");
92. Wyoming v. U.S. Dep't of Agric., 208 F.R.D. 449, 454 (D.D.C. 2002) (denying the plaintiff, in a suit against a Federal agency for violating rules on issuing regulations, an order for nonparty witnesses to produce documents regarding those regulations, when the court saw the request as expensive and unduly burdensome).
93. Some cases allow costly e-discovery when justified by high case stakes. See, e.g., PSEG Power NY, Inc. v. Alberici Constructors, Inc., No. 1:05-CV-657, 2007 WL 2687670, at *1, *9-10 (N.D.N.Y. Sept. 7, 2007) (mem.) (ordering the plaintiff, in a $4.4 million construction contract claim, at cost the of $40,000 to $200,000, "to produce all electronically stored emails, numbering approximately 3000, conjunctively with their corresponding attachments as 'married' documents"). Other cases allow costly e-discovery despite modest case stakes when the information appears valuable. For example, in W.E. Aubuchon Co. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), regarding a claim that an employee benefit administrator breached its fiduciary duty, the court found that the data sought-thousands of employee claims stored electronically as unindexed images-were "not reasonably accessible," id. at 43, when it could cost $80,000 and 4,000 hours
94. Courts also have denied, or denied unless plaintiffs paid the bulk of the cost, seemingly high-relevance e-discovery, see, e.g., Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 577 (N.D. Ill. 2004) (requiring class action harassment plaintiffs to pay 75 percent of a $249,000 email search for known pornographic and other harassing e-mails), and have denied costly discovery even in high-stakes Litigation in which the request seemed insufficiently essential, see, e.g., Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567, 569-72 (D. Minn. 2007) (denying, in a claim that landlords caused actual damages of $800,000, "enhanced damages" for fraud, and "long-term Economic impact" on parties' relationship, defendants' request for plaintiff's database on other landlords' lease charges, because data was not in searchable format and required restoration, costing $124,000 plus $27,823 per month, and defendant could compile the data from paper discovery).
95. As to the Economic value of Litigation accuracy, see generally Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J. Legal Stud. 307 (1994)
96. Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399 (1973).
97. Posner, supra note 89, at 402-06, 410-15. Although discovery is most commonly analyzed as a way plaintiffs get information from defendants, the opposite can be true as well. Defendants can destroy plaintiffs' claims by pressing them for the details of, and facts supporting, their allegations; defendants also often press defenses that are based on the plaintiff's conduct (and thus that require the defendant to seek discovery from the plaintiff), such as contributory negligence in tort cases, mitigation of damages in contract cases, and evidence of other misconduct that would have justified a challenged firing in employment discrimination cases.
98. Cf. Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke L.J. 1251, 1287 (2002). As Professor Bone and Dr. Evans noted as to rulings on class action certification, Judges make mistakes. They grant certification when it should be denied, and they deny certification when it should be granted.... An erroneous grant creates unnecessary administrative and Litigation costs and... unjustified settlements. An erroneous denial adds to plaintiffs' Litigation costs and can make it harder for plaintiffs to recover. Id.
99. Richard A. Epstein, The Risks of Risk/UtiLity, 48 Ohio ST. L.J. 469, 469, 476 (1987).
100. Frank H. Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. Rev. 635, 637, 644 n.26 (1989); see also Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi. L. Rev. 782, 809 (1986) (criticizing the "abiLity of a well-heeled or determined plaintiff to hound a defendant in discovery").
101. Easterbrook, supra note 93, at 644 n.26.
102. Fed. R. Civ. P. 26(b)(1).
103. Robert D. Cooter & Daniel L. Rubinfeld, An Economic Model of Legal Discovery, 23 J. Legal Stud. 435, 459 (1994);
104. Robert D. Cooter & Daniel L. Rubinfeld, Reforming the New Discovery Rules, 84 GEO. L.J. 61, 69-76 (1995). For other cost-shifting proposals, see supra note 78.
105. Bruce L. Hay, Civil Discovery: Its Effects and Optimal Scope, 23 J. Legal Stud. 481, 510-14 (1994).
106. See, e.g., Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking, 46 Stan. L. Rev. 1393, 1396 (1994) [hereinafter Mullenix, Discovery in Disarray]
107. Linda S. Mullenix, The Pervasive Myth of Pervasive Discovery Abuse: The Sequel, 39 B.C. L. Rev. 683, 685 (1998)
108. Jeffrey W. Stempel, Ulysses Tied to the Generic Whipping Post: The Continuing Odyssey of Discovery "Reform," 64 Law & Contemp. Probs. 197, 252 (Spring/Summer 2001) (arguing against 1990sera discovery rules amendments "constricting the availabiLity of information and continuing the late twentieth-century evolution favoring defendants over plaintiffs").
109. See Willging et al., supra note 4, at 547 n.34 (noting that discovery cost is unusually high in the costliest 5 percent of cases); see also Mullenix, Discovery in Disarray, supra note 98, at 1397, 1432-42 (Reviewing a number of empirical studies and finding "a surprisingly low incidence of discovery in Federal Civil Litigation").
110. Richard A. Posner, Economic Analysis of Law 571 (6th ed. 2003); see also Robert G. Bone, Civil Procedure: The Economics of Civil Procedure 203 (2003) (characterizing discovery similarly).
111. See, e.g., Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("Mutual knowledge of all the relevant facts gathered by both parties is essential to proper Litigation.").
112. For one article that does undertake just such an analysis of a range of procedural matters, including but not limited to discovery decisions, see Robert G. Bone, Who Decides?: A Critical Look at Procedural Discretion, 28 Cardozo L. Rev. 1961, 1996-2000 (2007). Bone analyzes procedural decisions based on a view of the judge as not an "umpire" but "a player in the game" whose decisions interact with those of the parties' to affect the course of Litigation. Id.
113. See supra note 57 and accompanying Text.
114. See Fed. R. Civ. P. 37(a).
115. See id. 26(c).
116. For a collection of cases in which parties detailed and argued before the court the costs and burdens of responding to discovery requests, see supra notes 84-88.
117. Fed. R. Civ. P. 26(b)(2)(C)(iii).
118. One caveat: If there are many similar low-value claims, then discovery in any one such case might be quite valuable, even if the claims are not aggregated into a class action, so long as the information disclosure in one case yields benefits for the others similarly situated, either by reducing other Litigants' discovery costs or by disclosing illegaLity before it occurs (and thereby saving not only Litigation cost, but also the cost of the illegaLity).
119. See Davis v. Ross, 107 F.R.D. 326, 327, 330 (S.D.N.Y. 1985) ("[P]lausible claims for punitive damages can easily be made in many actions.... [T]he amount of damages will always be in issue; plaintiff seeks one million dollars in compensatory damages, and evidence must be introduced to demonstrate that the award should be more than nominal." (emphasis omitted)).
120. See, e.g., Lyons v. Mobil Oil Corp., 554 F. Supp. 199, 201 (D. Conn. 1982) (holding that the pRevailing party wins attorneys' fees unless it obtains only nominal damages because "[i]njunctive relief is an important part of the [statutory] scheme... regardless of whether... damages are awarded")
121. Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 Geo. L.J. 887, 912 (1999) ("Assigning values to substantive interests is both difficult and controversial. Reasonable people disagree, for example, about the relative importance of the different interests protected by the Constitution.").
122. See, e.g., Hilao v. Marcos, 103 F.3d 767, 787 (9th Cir. 1996) (awarding damages in a human rights class action).
123. Edward F. Sherman & Stephen O. Kinnard, Federal Court Discovery in the 80's-Making the Rules Work, 95 F.R.D. 245, 276 (1982).
124. I should not overstate the point; the relevant rules of thumb could be made as accurate as possible by refining them for various subsets of cases. Cf. Bone, supra note 102, at 1996 (noting, as to various procedural matters for which judges might lack the information necessary for accurate rulings, that "it is possible to find criteria, such as type of claim, amount in controversy, number of parties, and so on, to sort different case types with reasonable clarity and efficiency"). For example, rather than just say that employment discrimination cases are fact intensive and thus warrant more discovery, the relevant rule of thumb could allow more discovery in certain kinds of discrimination cases, such as incumbent employees' termination and promotion claims (which typically depend on detailed evaluations of years of employee performance), but not rejected applicants' claims (in which all the employer knew was the applicant's interview and paper application, not years of performance). Still, even the best rule of thumb is just the best probabilistic generalization, one that yields suboptimal results in nonconforming cases.
125. Fed. R. Civ. P. 26(b)(2)(C)(iii).
126. See infra note 134 and accompanying Text.
127. The rules and cases on expert witness admissibiLity expressly rely on this logic. See, e.g., Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989) ("For an expert's testimony to be admissible..., it must be directed to... scientific, Technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert's help.").
128. Employment discrimination cases are the paradigmatic example. See sources cited supra note 1.
129. Fed. R. Civ. P. 30(a)(2)(A) (requiring "leave of court" for more than ten depositions); id. 30(d)(1) (providing that "a deposition is limited to 1 day of 7 hours" absent leave of court).
130. See Bone, supra note 100, at 229 n.36 (noting that to expand discovery past presumptive limits, courts must assess the value of greater discovery, which "is bound to be difficult in the absence of precise knowledge of what the discovery will Reveal").
131. Posner, supra note 100, at 571.
132. The plaintiff, the party with the burden of proving its opponent's misconduct, usually is the one seeking more discovery. Defendants may seek extensive discovery to prove misdeeds by plaintiffs, see sources cited supra note 90; such a defendant is in a position akin to that of a plaintiff, seeking evidence to prove its opponent's misdeeds, which is why this Article takes as its paradigmatic example plaintiffs seeking evidence to prove allegations of misconduct that defendants deny.
133. Sherman & Kinnard, supra note 112, at 279.
134. One example of a case that presents a complex intent question is Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990). See supra note 1.
135. Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 Yale L.J. 718, 732 (1975) (recounting in depth, and criticizing, that pRevailing view); see also Bone, supra note 110, at 894-95 (recounting the pRevailing view underlying enactment of the Federal Rules that "procedure was normatively distinct from and subordinate to substantive Law.... [so that] the design of a procedural system was mainly a Technical exercise in perfecting administrative machinery... enforc[ing] the substantive Law (whatever that Law might be).... [because] the values relevant to procedural rulemaking were not substantive in nature").
136. See, e.g., Bone & Evans, supra note 91, at 1282-83 ("Insofar as the argument assumes that it is possible to mark a sharp divide between procedure and substance, it ignores decades of judicial frustration grappling with the procedure/substance dichotomy.");
137. Cover, supra note 129, at 732-33 ("It is by no means intuitively apparent that the procedural needs of a complex antitrust action... and an environmental class action to restrain the building of a pipeline are sufficiently identical to be usefully encompassed in a single set of rules which makes virtually no distinctions among such cases in terms of available process.").
138. Fed. R. Civ. P. 12 (providing for Review of merits at the pleading stage).
139. As to L, see supra Part II.B.1. As to p, see supra Part II.B.2.
140. Fed. R. Civ. P. 26(b)(2)(C)(iii) (assessing "likely benefit" by "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the proposed discovery in resolving the issues"); id. advisory committee's note (listing similar factors and noting that "cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount").
141. Love v. Metro. Life Ins. Co., 8 F.R.D. 583, 584 (E.D. Pa. 1948); see also Carrizosa v. Stassinos, No. C 05-2280 RMW (RS), 2006 WL 1581953, at *1-2 (N.D. Cal. June 6, 2006) ("[P]ropriety of discovery does not turn on one party's belief that the claims are without merit.... This [discovery] motion... does not turn on the merits... but on the relevance of the materials requested to such claims.");
142. Maher v. Monahan, No. 98 Civ. 2319 (JGK)(MHD), 2000 WL 777877, at *4 (S.D.N.Y. June 15, 2000) ("We need not... address the ultimate merits of plaintiff's claim in order to assess the immediate discovery dispute.")
143. Natural Res. Def. Council v. Curtis, 189 F.R.D. 4, 8 (D.D.C. 1999) ("[P]ermitting discovery and leaving [aside] the question of the sufficiency of plaintiffs' case as a matter of Law... is the way... courts handle such matters.... [Plaintiffs] are not required to establish a legally sufficient case... as a condition of securing discovery....");
144. United States v. Clean Harbors, No. C-89-109-L, 1995 WL 155007, at *3 (D.N.H. Feb. 21, 1995) ("[T]he motion... deals solely with parameters of discovery and does not touch or address the merits of the case.");
145. In re Gupta Sec. Litig., No. 94-1517 FMS (FSL), 1994 WL 675209, at *2 (N.D. Cal. Sept. 24, 1994) ("In considering whether to stay discovery pending... a motion to dismiss, a court should not weigh the relative merits.");
146. In re First Constitution S'holder Litig., 145 F.R.D. 291, 294 (D. Conn. 1991) (deeming case merits irrelevant to a decision to stay discovery pending dismissal motion and stating that "[t]his judicial officer has a great uneasiness in Reviewing... [the] complaint and the pending motion to dismiss and in sEcond-guessing which one is likely to be the more meritorious");
147. Chubb Integrated Sys. v. Nat'l Bank of Wash., 103 F.R.D. 52, 59 (D.D.C. 1984) ("[O]n questions of discovery, typically, courts do not determine the legal sufficiency of claims.");
148. Paramount Film Distrib. Corp. v. Ram, 15 F.R.D. 404, 405 (E.D.S.C. 1954) ("Plaintiffs' objections to the remaining interrogatories are based upon their contention that the allegations by the defendants... do not constitute a valid defense.... but so far as [the court is] aware no motion has been made by the plaintiffs to strike this defense of the defendants. [The court] know[s] of no authority that [it] ha[s] to strike such a defense [on its] own motion. The defense, therefore, until stricken is valid. [The court] cannot say that the interrogatories are not relevant....");
149. V.D. Anderson Co. v. Helena Cotton Oil Co., 117 F. Supp. 932, 945 n.9 (E.D. Ark. 1953) ("[I]t is no objection to an interrogatory that it relates to a defense or claim which is insufficient in Law. It is not ordinarily the function of the court in passing upon objections to interrogatories to decide ultimate questions.");
150. Laird v. United Shipyards, Inc., 1 F.R.D. 772, 773 (S.D.N.Y. 1941) ("The validity of defenses need not be determined upon a motion to limit an examination before trial, where the matter sought to be inquired into is relevant....").
151. Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67, § 101, 109 Stat. 737, 747 (codified as amended at 15 U.S.C. § 78u-4(b)(3)(B) (2006)) ("In any private action arising under this chapter, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss....").
152. 15 U.S.C. § 78u-4b(1) (requiring that plaintiffs identify each false or misleading statement and specify why each was false or misleading).
153. Discovery decisions considering case merits tend to feature a high public interest that discovery would jeopardize, such as a public interest in newsgathering harmed by discovery from journalists, see, e.g., Apel v. Murphy, 70 F.R.D. 651, 654 (D.R.I. 1976), or in avoiding publicity that would discourage reports of air accidents, see, e.g., United Air Lines, Inc. v. United States, 26 F.R.D. 213, 219 (D. Del. 1960).
154. For a discussion of how the same analysis applies to defendants, see supra note 125.
155. Federico v. United States, 70 Fed. Cl. 378, 386 (2006) (dismissing the case before discovery for failure to state a claim because of the "legal reaLity... that Federal employees who serve by appointment may not bring contract claims"); see also, e.g., Kloth v. Microsoft Corp., 444 F.3d 312, 324 (4th Cir. 2006) (holding the same, on a claim that the defendant "deprived consumers of competitive Technology" when the claim of injury from deterred invention of new Technology was "speculative and beyond the competence of a judicial proceeding," so that "discovery would not change or inform the nature of the alleged injuries").
156. See, e.g., New Rochelle Dodge, Inc. v. Bank of N.Y., 511 N.Y.S.2d 663, 665 (App. Div. 1987) (granting the plaintiff prediscovery "summary judgment in lieu of complaint" when the defendant "acknowledged the debt" on retail installment contract);
157. Chase Manhattan Bank, N.A. v. Marcovitz, 392 N.Y.S.2d 435, 436 (App. Div. 1977) (holding the same for debt to a Law firm).
158. This point should not be overstated because a high-odds case quickly can become a low-odds case if denied sufficient discovery. The only (modest) point here about evidentiary value in close-call cases versus higher-odds cases is just that although both case types typically need discovery, the point at which additional evidence proves redundant is likely to come earlier in the high-odds case.
159. See Bone, supra note 100, at 89 n.63 (noting similarly that readers "whose algebra is a bit rusty can skip... [these] algebraic expressions without any problem").
160. See Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1482 (1999) ("[As] more evidence is obtained, the effect of additional evidence... will tend to decrease, especially if the search begins... with the most probative evidence."). A related reason evidence offers diminishing marginal benefits is that "[i]f the searcher cannot determine in advance which evidence is... fruitful, his search procedure will resemble random sampling, and as the size of a sample grows, the value of additional sampling... [is] at a falling rate." Id. at 1482-83.
161. In a Cournot model, two firms comprise a market; facing an inverse demand curve, each chooses production quantity based on the probabiLity the other has high costs (low output) or low costs (high output). Robert Gibbons, Game Theory for Applied Economists 144 (1992). My model is analogous as to the probabiLity a case has merit. With optimal discovery rising, and then falling as p increases, I model p as a continuous, not discrete, variable (and thus use derivatives for optimization calculations). See Robert Cooter & Thomas Ulen, Law & Economics 317 (4th ed. 2003) (noting preference for "develop[ing] theory using continuous variables").
162. To reiterate the preceding calculations:.
163. H. Scott Bierman & Luis Fernandez, Game Theory with Economic Applications § 17.1, at 297 (1993); see also Ian Ayres, Playing Games with the Law, 42 Stan. L. Rev. 1291, 1291 (1990) ("[T]he theory of games has increasingly dominated microEconomic theory.").
164. See Eric Rasmusen, Games and Information: An Introduction to Game Theory § 11.1, at 320 (4th ed. 2007) (noting that "signaling costs must differ" between those of high and low worth "for signaling to be useful").
165. Courts occasionally admit premising their rulings on broad hunches, of questionable accuracy in any individual case, about case merit based on proxies such as case type. See, e.g., In re First Constitution S'holder Litig., 145 F.R.D. 291, 293 (D. Conn. 1991) ("Securities fraud actions are recognized as being particularly vulnerable to strike suits.... [T]his action belongs to a class that is subject to strike suits...."). Most courts, however, deny considering case merit in discovery decisions. See supra note 136 and accompanying Text. Courts also might see in the pleadings an apparent fLaw that justifies limiting discovery until a dismissal motion. See, e.g., Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 644 (6th Cir. 2005) (upholding limited discovery pending a dismissal motion, given that the complaint seemed highly questionable and a qualified immunity defense seemed promising).
166. Bierman & Fernandez, supra note 148, § 18.2.6, at 337 ("[A] pooling equilibrium implies the informed player's actions Reveal nothing about what type of player he is."). The situation actually is likely a partially pooling equilibrium because some parties can signal merit effectively, such as with a powerful piece of evidence unearthed early enough to submit to the court on a discovery motion. See GIBBONS, supra note 146, at 213-18 (discussing partially pooling equilibria). The pooling diagnosis remains because in many cases the evidence will be equivocal or disputed, and the court will have trouble sifting through both sides' opposing arguments as to case merit, so many cases of varied merit levels will populate the same pool because they will feature signals (merits arguments) the court cannot distinguish without undertaking more effort than it typically can devote to a discovery dispute.
167. Alternatively, the situation could be viewed not as a pooling equilibrium in a signaling game (in which the party making the showing is informed but the party that must respond is not) but as a screening game (in which the party responding to the showing knows more than the party making that showing). See, e.g., Andrew F. Daughety & Jennifer F. Reinganum, Found Money? SpLit-Award Statutes and Settlement of Punitive Damages Cases, 5 AM. L. & Econ. Rev. 134, 140-42 (2003). This Article's focus on diagnosing and remedying the signaling problems that afflict many cases (that in many cases, parties know more than the judge which claims or defenses have merit) should not be seen as an argument that all cases have signaling problems. There presumably are cases of close to complete, or at least symmetrically incomplete, information. Further, not all asymmetric-information cases are best described as signaling rather than as screening games; presumably there are cases in which the judge must screen claims and defenses because the judge knows better than the Litigants which claims or defenses have merit-such as cases turning on complex disputed legal interpretations in which the judge knows best what the judge's views will be on certain arguments.
168. Bone, supra note 100, at 205 (noting that because "parties have incentives to misrepresent that they have favorable evidence when they do not... [and] verification is not always possible... [recipients] discount the truth of the information disclosed").
169. P.C. Wason, On the Failure to Eliminate Hypotheses in a Conceptual Task, 12 Q.J. Experimental Psychol. 129, 138-39 (1960) (finding that after people make an initial, premature guess as to a numerical pattern, they skew their interpretation of later data to preserve that guess).
170. Scott A. Moss & Daniel A. Malin, Note, Public Funding for DisabiLity Accommodations: A Rational Solution to Rational Discrimination and the DisabiLities of the ADA, 33 HARV. C.R.-C.L. L. Rev. 197, 208 (1998) (noting the role of confirmation bias in perpetuating discriminatory stereotypes).
171. See, e.g., David G. Myers, Social Psychology 119-20 (3d ed. 1990); see also Moss & Malin, supra note 155, at 207 (noting the role of availabiLity bias in perpetuating discriminatory stereotypes).
172. Bone, supra note 102, at 1988.
173. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. WistRich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 16 (2007). [In] our experimental research on judges[,] [w]e provide tests of judges' general reasoning skills as well as their decision-making skills in legal conTexts. Our results demonstrate that judges, like others, commonly make judgments intuitively, rather than reflectively, both generally and in legal conTexts. Id. at 6.
174. George A. Akerlof, The Market for "Lemons": QuaLity Uncertainty and the Market Mechanism, 84 Q.J. Econ. 488, 489-90 (1970).
175. For views on Litigation and discovery excess, see supra notes 81-91 and accompanying Text.
176. See, e.g., Henry S. Noyes, Good Cause Is Bad Medicine for the New E-Discovery Rules, 21 Harv. J.L. & Tech. 49, 71 (2007) (criticizing proportionaLity and e-discovery rules as too vague to rein in excess discovery that courts are too unwilling to limit).
177. Redish, supra note 78, at 563-64 (noting that "the rules' drafters and Revisers over the years... have failed to fashion a discovery process that satisfies most people," and specifically criticizing discovery rules for lacking more cost shifting or spoliation provisions).
178. Thomas D. Rowe, Jr., A Square Peg in a Round Hole? The 2000 Limitation on the Scope of Federal Civil Discovery, 69 TENN. L. Rev. 13, 14 (2001) (criticizing Federal rules' discovery limits as vague and therefore unable to change judicial decisionmaking).
179. Rowe, supra note 161, at 14.
180. Thompson v. Dep't of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001).
181. Noyes, supra note 161, at 51-52.
182. See supra note 34 and accompanying Text.
183. Ayres, supra note 148, at 1307. Separating equilibria actually may be suboptimal if the signals have no intrinsic value except as signals of merit (for example, obtaining a certain educational degree as a signal of work ethic or intellect). In such a separating equilibrium, the cost of signal acquisition (for example, time and tuition) could exceed the improved abiLity to separate those of high and low merit. See Michael Spence, Job Market Signaling, 87 Q.J. Econ. 355, 364-65 (1973). But this Article addresses forced disclosure of evidence a party wishes to conceal, so the problem of wasteful acquisition of signals is inapposite.
184. See Robert H. Frank, Passions Within Reason: The Strategic Role OF the Emotions 96-113 (1988) (discussing how signals can degenerate into cheap talk if listeners are uninformed and therefore unable to spot false signals);
185. Michal Barzuza, Lemon Signaling in Cross-Listing 27 (Oct. 1, 2007) (unpublished manuscript), available at http://ssrn.com/abstract= 1022282 (discussing investor efforts to distinguish "Type L" companies more susceptible to corruption and "Type H" ones less susceptible and arguing that "[t]here will be a separating equilibrium [if and only if] Type L firms choose not to mimic Type H firms");
186. Lucian A. Bebchuk, Asymmetric Information and the Choice of Corporate Governance Arrangements 2 (John M. Olin Ctr. for Law, Econ. & Bus., Harvard Law Sch., Discussion Paper No. 398, 2002), available at http://ssrn.com/abstract=327842 (noting how a pooling equilibrium can be destabilized if "better" actors can make tangibly different offers).
187. See Richard A. Posner, Economic Analysis of Law 725 (7th ed. 2007) (noting how pooling equilibria occur when those with higher merit find it "difficult to separate themselves" from those with less).
188. See supra Part II.B.3.c.
189. The classic article is George A. Akerlof's The Market for "Lemons": QuaLity Uncertainty and the Market Mechanism, which notes that in used car markets, "bad cars drive out the good because they sell at the same price as good cars," but over time better information emerges: After owning a specific car... the car owner can form a good idea of the quaLity... i.e., the owner assigns a new probabiLity... that his car is a lemon. This estimate is more accurate than the original estimate.... But good cars and bad cars must still sell at the same price - since it is impossible for a buyer to tell the difference.... Akerlof, supra note 159, at 489-90; see also Alan Mathios, The Impact of Mandatory Disclosure Laws on Product Choices: An Analysis of the Salad Dressing Market, 43 J.L. & Econ. 651, 651, 666-67 (2000) (noting how mandatory disclosure of food nutrition content shifted a market from partial pooling-nondisclosure by higher-fat dressings that varied greatly, in nutritional terms- to full separating).
190. See Barzuza, supra note 169, at 7-10 (discussing how a pooling equilibrium might become a separating equilibrium if Law forces a decision on parties (that is, whether to list stock on an exchange imposing intrusive regulation) that high- and low-value companies decide differently, thereby credibly signaling their value).
191. See Fed. R. Civ. P. 12(b)(6).
192. See id. 12(b)(1)-(2).
193. Motions for judgment on the pleadings are rare because "Federal courts have followed a fairly restrictive standard in ruling on motions for judgment on the pleadings." 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368, at 222 (3d ed. 2004) (collecting cases); see also id. § 1367, at 207-08 ("[J]udgment on the pleadings only has utiLity when all material allegations of fact are admitted or not controverted in the pleadings and only questions of Law remain....").
194. To be clear, lack of merit could mean any number of ways that a case could lose, whether that the allegations were false, that the allegations were true but could not be supported sufficiently, that the allegations were true but some form of jurisdiction was lacking, or any other reason.
195. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-14 (2002) (discussing this sequence of pretrial stages).
196. See Bone, supra note 100, at 90-91.
197. Scott A. Moss, Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. 867, 877 (2007).
198. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (allowing summary judgment only if no reasonable jury could find for the nonmovant);
199. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007) (noting that summary judgment is denied when the evidence, "in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor").
200. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1, 18-19 (1984) (noting that as Litigation features fewer trials, "the proportion of plaintiff victories will approach 50 percent" under certain assumptions, such as that the "plaintiff and defendant possess information that is on average of equal precision, and if the application of legal standards is, on the whole, coherent and predictable... [and] to the extent [there is a] cost advantage of settlement over Litigation"). Professors Priest and Klein collect "substantial evidence" for their "selection hypothesis" that cases selected for trial will tend to be close calls. Id. at 31-53, 55 (recounting the evidence).
201. See, e.g., Steven Shavell, Any Frequency of Plaintiff Victory at Trial is Possible, 25 J. Legal Stud. 493, 494 (1996) ("[D]ata... does not support a tendency toward 50 percent plaintiff victories."). Professor Shavell notes that the fifty-fifty hypothesis may fail under certain information problems or if most Lawsuits are meritorious. Id. at 494, 499-500. These conditions seem likeliest in certain case types, such as those that are especially uncertain, and thus hard to settle (or dismiss when unmeritorious), because they arise under a new Law. See, e.g., Ruth Colker, The Americans with DisabiLities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 100 (1999) ("[D]efendants pRevail in more than ninety-three percent of reported ADA employment discrimination cases decided on the merits at the trial court level. Of those cases that are appealed, defendants pRevail in eighty-four percent of reported cases. These results are worse than results found in comparable areas...." (footnotes omitted)).
202. See Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 511-12 (1986) ("[S]ome 35 percent of all Federal cases are disposed of by rulings on motions for dismissal or for summary judgment." (citing information from the Administrative Office of the United States Courts));
203. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. Rev. 631, 636 (noting, based on a collection of decades of government data, that the proportion of cases resolved on "dispositive motions[, including] dismissals on the pleadings, summary judgments, and similar rulings that end a case... has remained quite constant over fifty years at about one-third of all Federal Civil cases"). These estimates are very rough, however, and efforts at more precise estimates, such as the percentage dismissed on 12(b)(6) motions, have yielded quite a varied range of figures, from 2 percent to 6 percent or higher. See Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 Tex. L. Rev. 1749, 1754 (1998).
204. See Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements, 64 WASH. & LEE L. Rev. 111, 111-12, 117 (2007).
205. In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Court held that motions to dismiss for failure to state a claim rarely should be granted in employment discrimination suits, id. at 514-15, one of the most common Lawsuit types, see infra note 234 and accompanying Text (discussing employment cases). The Court may have shown more willingness to allow such dismissals in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), which dismissed an antitrust complaint that insufficiently alleged conspiracy, id. at 1973-74. Yet Twombly denied abrogating Swierkiewicz, id., and may be more of a heightened antitrust pleading standard than a major change to general standards for dismissal motions.
206. See Bone, supra note 100, at 19 ("Empirical research in this area is extremely difficult to conduct because most Lawsuits settle and settlements mask evidence of frivolousness.");
207. Moss, supra note 179, at 867, 869 (noting the pRevalence of confidentiaLity clauses in settlements). The one known study of confidential settlements found that in one Federal district, the median confidential settlement size was $30,000 in employment discrimination and $181,500 in personal injury, cases. Kotkin, supra note 184, at 144 & n.134. But most such settlements were late in Litigation, after discovery or summary judgment, id. at 135, 145-49, so the study sheds only a Little light on the merits of cases that settle early.
208. See, e.g., Fletcher v. City of Fort Wayne, 162 F.3d 975, 976, 978 (7th Cir. 1998) (finding that the plaintiffs were not "pRevailing parties" due to the size of their $2,500 to $5,000 settlements and noting that settlement "for less than the costs of defense is a good working definition of a nuisance-value settlement, unless... the stakes of the case are themselves small"). See generally Moss, supra note 179, at 899-900 (noting that defendants in some cases "stick to a 'nuisance-value' offer (such as $5000)" (citing Fletcher, 162 F.3d at 976)).
209. I discounted by the fraction of cases not dismissed.
210. For a discussion of the evidence of high rates of dismissals of weak cases and of the limited value of settled cases, see supra notes 184-85 and accompanying Text.
211. See supra note 186 and accompanying Text.
212. For a discussion of the Priest-Klein hypothesis and its critics, see supra notes 181-82 and accompanying Text.
213. See Natural Res. Def. Council v. Curtis, 189 F.R.D. 4, 8 (D.D.C. 1999) ("[L]eaving the question of the sufficiency of plaintiffs' case as a matter of Law to a point after discovery closes is the way in which the Federal courts handle such matters. Therefore, plaintiffs are correct... that they are not required to establish a legally sufficient case... of the applicabiLity of [the Federal Advisory Committee Act]... as a condition of securing discovery and that resolution of the legal issues concerning that applicabiLity is premature until discovery ends." (emphases added));
214. Bone & Evans, supra note 91, at 1284 ("[T]he procedural system seems to favor postponing a serious evidentiary Review until after substantial discovery has been completed. Summary judgment, for example, usually takes place only after the parties have had ample opportunity to uncover information and evidence.").
215. Coastal States Gas Corp. v. Dep't of Energy, 84 F.R.D. 278, 282 (D. Del. 1979) (citing Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 865 (3d Cir. 1977)); see also United States v. Price, 577 F. Supp. 1103, 1115-16 (D.N.J. 1983) ("[W]here a plaintiff must obtain a good deal of information from the opposing party, judgment should be withheld until the discovery process has been completed." (citing Nat'l Life Ins. v. Solomon, 529 F.2d 59, 61 (2d Cir. 1975)));
216. Concord Labs., Inc. v. Concord Med. Ctr., 552 F. Supp. 549, 554 (N.D. Ill. 1982) (holding that if a case entails "knowledge and intent" issues, "material evidence is almost entirely in the hands of the defendants, and where plaintiff can establish a fair likelihood that it can obtain material evidence through discovery, we think it unfair to grant defendants summary judgment until plaintiff has had a full opportunity").
217. Fed. R. Civ. P. 56(f).
218. Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230 (2d Cir. 1985).
219. Conn. Bank of Commerce v. Congo, 309 F.3d 240, 264 (5th Cir. 2002) ("[The] court should have allowed full discovery [to]... allow[] the Bank a fair opportunity to present all available material evidence pertinent to its opposition to... summary judgment.").
220. Price, 577 F. Supp. at 1115.
221. Pub. Serv. Co. of Colo. v. Cont'l Cas. Co., 26 F.3d 1508, 1518 (10th Cir. 1994) (emphasis added) (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1081 (10th Cir. 1985)); see also Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1029-30 (5th Cir. 1983) ("[A] plaintiff's entitlement to discovery prior to a ruling on a motion for summary judgment is not unlimited, and may be cut off when the record shows that the requested discovery is not likely to produce the facts needed by plaintiff to withstand... summary judgment.").
222. See, e.g., Moore v. Busby, 92 F. App'x 699, 702 (10th Cir. 2004) (holding that the district court was permitted to stay discovery pending disposition of the summary judgment motion by the defendant, a judge, on the threshold question of his immunity from suit as a judge).
223. See, e.g., Living Will Ctr. v. NBC Subsidiary (KCNC-TV), Inc., 857 P.2d 514, 520 (Colo. Ct. App. 1993) (holding that "[l]imited discovery on the issue of falsity is therefore appropriate" before summary judgment motion because "discovery pertaining to defendants' state of mind... is not pertinent to the issue of falsity.... [and] the issue of falsity... [entails] production only of several hours of original unedited video and audio tapes and internal production memoranda and records"), Rev'd on other grounds, 879 P.2d 6 (Colo. 1994).
224. Rex R. Perschbacher & Debra Lyn Bassett, The End of Law, 84 B.U. L. Rev. 1, 34 (2004) (noting that judges at the trial court level "are permitted to make discretionary rulings with respect to discovery" and other matters); see also Richard L. Marcus, Slouching Toward Discretion, 78 Notre Dame L. Rev. 1561, 1587-90 (2003) (discussing the procedural discretion of district courts in case-management activities, including discovery matters).
225. Fed. R. Civ. P. 16(c)(2)(F).
226. See id. 16 advisory committee's note ("[T]he initial disclosures required by Rule 26(a)(1) will ordinarily have been made before entry of the scheduling order, [and] the timing and sequence for disclosure of expert testimony and of the witnesses and exhibits to be used at trial should be tailored to the circumstances of the case and is a matter that should be considered at the initial scheduling conference.").
227. See supra notes 192-97 and accompanying Text.
228. Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 and 18 U.S.C.).
229. 15 U.S.C. § 78u-4(b)(3)(B) (2006) ("In any private action arising under this chapter, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss....").
230. See, e.g., Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 878 (N.D. Iowa 2008) ("The court limited discovery to class certification issues, and set deadlines for the parties' briefs related to class action and collective action certification.");
231. Hoving v. Transnation Title Ins. Co., 545 F. Supp. 2d 662, 670-71 (E.D. Mich. 2008) ("[D]iscovery may commence immediately, but it shall be limited to class certification issues. Discovery must be relevant to the issues of class certification, including numerosity, typicaLity, commonaLity, adequacy of representation, and the definition of a proposed class.");
232. In re Sonus Networks, Inc. Sec. Litig., 247 F.R.D. 244, 252 (D. Mass. 2007) ("This case, of course, is not yet at the summary judgment stage, and [the court] cannot determine the merits of the case based upon the limited discovery that has taken place for the purposes of class certification.").
233. James D. Cox, Making Securities Fraud Class Actions Virtuous, 39 Ariz. L. Rev. 497, 520 (1997).
234. E.g., Sylvester v. SOS Children's Vills. Ill., Inc., 453 F.3d 900, 904 (7th Cir. 2006) ("There is no Rich mosaic of circumstantial evidence of retaliation in this case, but there is enough (though maybe barely enough) to preclude summary judgment.");
235. Smith v. Mattox, 127 F.3d 1416, 1419-20 (11th Cir. 1997) (holding that the evidence of excessive use of force was "barely" enough because the "hazy border between permissible and forbidden force is marked by a multifactored, case-by-case balancing test," precluding a ruling on the level of force "within the confines of summary judgment Review").
236. E.g., MetroNet Servs. Corp. v. U.S. W. Commc'ns, 329 F.3d 986, 1008 (9th Cir. 2003) ("Although the evidence of the financial harm to MetroNet is weak, it is sufficient to withstand summary judgment."), Rev'd sub nom. MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124 (9th Cir. 2004)
237. Colburn v. Trs. of Ind. Univ., 739 F. Supp. 1268, 1293 (S.D. Ind. 1990) ("Plaintiffs' evidence... is weak, but it appears to be just enough to get them past summary judgment.").
238. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay KANE, Federal Practice and Procedure § 2729, at 533 (3d ed. 1998).
239. See, e.g., Smith, 127 F.3d at 1419-20 ("[W]e cannot within the confines of summary judgment Review hold the force not obviously unreasonable.").
240. 10B Wright ET AL., supra note 213, § 2727, at 468-69 (footnotes omitted).
241. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476 (7th Cir. 1988); see also Thompson Everett, Inc. v. Nat'l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995) (deeming the "mere existence of some disputed facts" insufficient, because "the quaLity and quantity of the evidence offered to create a question of fact must be adequate to support a jury verdict [and] if the evidence is 'merely colorable' or 'not significantly probative,' it may not be adequate to oppose entry of summary judgment" (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986))).
242. 10B Wright et al., supra note 213, § 2730, at 40-43 (footnotes omitted) (collecting cases); see also Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1087 (6th Cir. 1996) ("Cases involving state of mind issues are not necessarily inappropriate for summary judgment.").
243. For cases requiring sampling of high-volume deleted data, see Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280, 281-82 (S.D.N.Y. 2003).
244. McPeek v. Ashcroft, 202 F.R.D. 31, 34-35 (D.D.C. 2001).
245. AAB Joint Venture v. United States, 75 Fed. Cl. 432, 443-44 (2007).
246. AAB Joint Venture, 75 Fed. Cl. at 443-44 (footnote omitted) (citation omitted).
247. As to cost-shifting rules, see supra notes 69-73 and accompanying Text. As to costshifting case Law, see infra notes 238-53 and accompanying Text.
248. See sources cited supra note 78.
249. See Hay, supra note 97, at 502 (discussing how discovery helps plaintiffs prove and redress illegaLity).
250. Fed. R. Civ. P. 26(f)(1)-(3) (requiring parties, in advance of their in-court scheduling conference, to meet by themselves to try to reach agreement on a discovery plan before court intervention).
251. Cox, supra note 210, at 520.
252. See supra notes 194-97 and accompanying Text.
253. Janet Novack, Control/alt/discover, Forbes, Jan. 13, 1997, at 60, 60 (telling how one ediscovery consultant charged over $1 million for a court-ordered search of 50,000 tapes, which the consultant cast as "blackmail" (by the plaintiff, not the consultant), and a violation of some 'gentleman's agreement' not to go after each other's electronic data" among Lawyers generally (quoting John Jessen, President, Electronic Evidence Discovery, Inc.)).
254. See, e.g., Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309, 315 (S.D.N.Y. 2003) ("[S]imply... create a plain language search.... [for] 'header' information, such as the date or the name of the sender or... the Text of the e-mail.... UBS personnel could easily run a search for e-mails containing the words 'Laura' or 'Zubulake.'").
255. For example, this author has no Technical skills but once recovered many "deleted" emails that remained accessible from university servers in an e-mail account subfolder.
256. See, e.g., Semsroth v. City of Wichita, 239 F.R.D. 630, 638, 640 (D. Kan. 2006) (rejecting an argument that e-mails on backup tapes were not readily accessible when the estimated cost was $3,374.95)
257. See Panel Discussion, supra note 20, at 22 (comments of James C. Francis IV, J., United States District Court for the Southern District of New York) (noting that "metadata" includes "changes to the document over time [and] who the author of the document is," as well as when the computer was used on the document, which may help assess "the authenticity of documents" and a party's "intent... in drafting" them).
258. See supra notes 218-19 and accompanying Text; see also infra notes 240, 249 and accompanying Text.
259. For a collection of cases denying seemingly relevant discovery due to cost, see supra notes 84-85, 88.
260. See Ann C. Hodges, Mediation and the Transformation of American Labor Unions, 69 Mo. L. Rev. 365, 369 & n.27 (2004) (noting that such cases "also substantially increased in many state courts").
261. Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280 (S.D.N.Y. 2003).
262. 42 U.S.C. § 1981a(b)(3) (2006) (capping emotional distress and punitive damages at $50,000 to $300,000).
263. Zubulake III, 216 F.R.D. at 281, 288 (recounting that Zubulake had earned a $650,000 annual salary as an equities trader at a New York securities firm).
264. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000).
265. Zubulake III, 216 F.R.D. at 285, 287 (emphasis added).
266. Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004).
267. Class Action Complaint at 1, 12, Wiginton, 229 F.R.D. 568 (No. 02C 6832), 2002 WL 32451852.
268. Wiginton, 229 F.R.D. at 569-70, 577.
269. See Margo Schlanger, Civil Rights Injunctions over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550, 599 n.163 (2006) ("[E]ven 'unpublished' opinions in the Federal courts of appeals are available via WestLaw, whereas the problem of non publication creates a bias of unknown direction and strength in district court opinion analysis." (emphases added)).
270. See supra note 57 and accompanying Text.
271. See Fed. R. Civ. P. 16 (providing for court conferences on discovery, trial scheduling, etc.).
272. Wright v. Sports Auth., Inc., 01 Civ. 2326 (LAP) (S.D.N.Y. Mar. 29, 2001).
273. The author of this Article was that unfortunate plaintiff's Lawyer.
274. See Fed. R. Civ. P. 30(a)(2)(A)(i).
275. For cases allowing discovery of full personnel files, see, for example, Gatewood v. Stone Container Corp., 170 F.R.D. 455, 458 (S.D. Iowa 1996).
276. Ladson v. Ulltra East Parking Corp., 164 F.R.D. 376, 378 (S.D.N.Y. 1996).
277. Fed. R. Civ. P. 16.
278. Although the Judicial Conference has not issued any Advisory Committee's notes without a new rule, that policy is not mandated by any Law or rule of Civil procedure.
279. See Richard A. Posner, Coping with the Caseload: A Comment on Magistrates and Masters, 137 U. PA. L. Rev. 2215, 2216 (1989) (discussing magistrate judges' discovery expertise and arguing that "[a]buse... is more likely to occur in a case supervised by a district judge, whose primary responsibiLities lie in trying cases and managing. .. docket[s], than in a case supervised by a magistrate, whose most challenging and responsible task is, precisely, to manage discovery in big Civil cases").
280. For a discussion of decisions limiting discovery based on anticipated merits, see supra note 150 and accompanying Text.
281. See 7B Wright et al., supra note 213, § 1796.1, at 57 ("[I]nitially... discovery should be limited to what is necessary for determining whether a proper class action exists."); see also, e.g., Parker v. Time Warner Entm't Co., 331 F.3d 13, 21 (2d Cir. 2003) ("[I]t is likely that at least minimal class discovery must be conducted in order to provide the court with the factual information necessary to decide whether or not to certify a Rule 23(b)(2) class.").
282. See, e.g., Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (requiring preservation of data upon notice of relevance to ongoing or impending Litigation). Zubulake IV imposes a broad but not unlimited duty to "suspend [a] routine document retention/destruction policy" to preserve data: Must a corporation, upon recognizing the threat of Litigation, preserve... every email or electronic document, and every backup tape?... Such a rule would cripple large corporations.... ... Once a party reasonably anticipates Litigation, it must suspend its routine document retention/destruction policy. .. [with] a "Litigation hold".... As a general rule, that Litigation hold does not apply to inaccessible backup tapes... maintained solely for the purpose of disaster recovery[], which may continue to be recycled... [per] company[] policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the Litigation hold.... [However, i]f a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of "key players" to the existing or threatened Litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.
283. Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003).
284. See, e.g., Welsh v. United States, 844 F.2d 1239, 1244 (6th Cir. 1988) ("[Defendant's] act of discarding the skull flap was, if not intentional, at least seriously negligent.").
285. See, e.g., Kronisch, 150 F.3d at 116-18, 126 (allowing an adverse inference against a government defendant when "records were destroyed" by CIA personnel in a case concerning a CIA program of "surreptitious administration of LSD to unwitting nonvolunteer subjects").
286. See Welsh, 844 F.2d at 1244, 1246, 1249 (upholding an adverse inference as to liabiLity, because although the "[defendant's] negligent destruction of the skull flap does not lead to a conclusion that the medical care of Mr. Welsh was negligent.... [t]he destruction did... foreseeably prejudice his legal rights").
287. See, e.g., AAB Joint Venture v. United States, 75 Fed. Cl. 432, 443 (2007) (holding that the defendant had "a duty to preserve e-mails from July 2002 to the present, and that Defendant's decision to transfer the e-mails to back-up tapes does not exempt Defendant from its responsibiLity to produce relevant e-mails"). As one Federal judge explained, the costs of preservation can be exorbitant, not just... not recycling back-up tapes, but... implementing a Litigation hold, just contacting everybody, finding out where the information resides.... [T]here is inevitably uncertainty about the scope.... Are you going to have to preserve back-up data? How far back are you going to have to preserve it? What are your employees going to be able to do in terms of deleting their e-mails? Panel Discussion, supra note 20, at 17 (comments of James C. Francis IV, J., United States District Court for the Southern District of New York).
288. One judge explained the need for broad preservation orders as follows: In the paper realm, I can pretty well say, "And thou shalt not destroy any documents of this type".... In the electronic arena, I am probably going to have to know which servers the data is likely to reside on, and perhaps who the individuals are whose emails have to be preserved.... [Y]ou may well have to preserve inaccessible data even though you will make an argument later on that you do not have to produce it. Panel Discussion, supra note 20, at 19 (comments of James C. Francis IV, J., United States District Court for the Southern District of New York).
289. See, e.g., Joseph A. Grundfest & Peter H. Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 Stan. L. Rev. 1267, 1270-71 (2006) (modeling Litigation with "real options theory," "[a] tool[] applied to the Economic analysis of research and development projects").
290. See, e.g., Moss, supra note 179, at 877 (analyzing settlement confidentiaLity based on information distinctions between settlements reached before and after Litigation commences).