: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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The Problem of Discovery

By: Luke Gilman | Other Posts by
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Martha Neil with the  ABA Journal  has a pair of articles up on discovery, OK, Discovery’s a Problem, But What Can Be Done About It? and Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say, prompted by an interim report released by the American College of Trial Lawyers: ACTL & IAALS PUBLISH INTERIM REPORT ON PROBLEMS ASSOCIATED WITH DISCOVERY

Some of the themes of the report:

  1. Although the civil justice system is not broken, it is in serious need of repair. The survey shows that the system is not working; it takes too long and costs too much. Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
  2. The discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, clearly needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.”
  3. Judges should take more active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules. According to one respondent, “Judges need to actively manage each case from the outset to contain costs; nothing else will work."
  4. Local Rules are routinely described as “traps for the unwary” and many think they should either be abolished entirely or made uniform.
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Category: civil procedure, law practice


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