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THE EVOLUTION OF DISCOVERY

Adapted from Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure 2001 (2d. ed. 1987) Chapter 6

PURPOSES AND PROBLEMS OF DISCOVERY

Rules 26 to 37 contain some of the most important procedural provisions in the Civil Rules. The pre-trial deposition/discovery mechanism that these rules established is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving, issue-formulation, and fact-revelation were performed primarily and inadequately by the pleadings. (1) Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition/discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, related to those issues. Thus, civil trials in the federal courts no longer need be carried out in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. (2)

The Court reiterated this view in 1958 in United States v. Procter & Gamble Company, (3) where it said:

Modern instruments of discovery serve a useful purpose, as we noted in Hickman v. Taylor. * * * They together with pretrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.

To understand the significance of the improvements made by the discovery rules, it should be remembered that under the prior procedure the means by which parties could narrow the issues and discover information needed to prepare for trial were very limited. Under the philosophy that a judicial proceeding was a battle of wits rather than a search for the truth, each side was protected to a large extent against disclosure of its case. As already pointed out, the federal rules relieved the pleadings of their top-heavy burden of formulating issues and disclosing facts.(4) Under the present procedure, the pleadings are called upon only to give notice generally of the issues involved in the case. The discovery procedures of Rules 26 to 37, together with pretrial hearings under Rule 16, provide the means for determining the precise issues and obtaining the information that each party needs to prepare for trial. (5)

The rules' liberalization of discovery had three distinct purposes and uses: (1) To narrow the issues, in order that at the trial it may be necessary to produce evidence only on a residue of matters that are found to be actually disputed and controverted; (2) To obtain evidence for use at the trial; (3) To secure information about the existence of evidence that may be used at the trial and to ascertain how and from whom it may be procured, as for instance, the existence, custody, and location of pertinent documents or the names and addresses of persons having knowledge of relevant facts. (6)

The basic philosophy underlying this procedure was that, prior to trial, every party to a civil action is entitled to the disclosure of all relevant information in the possession of any person, unless the information is privileged. The discovery procedures adopted in 1938 and expanded in ensuing decades enabled a party not only to narrow the issues and obtain evidence for use at the trial, but also to discover information about where and how such evidence could be obtained. The scope of discovery was broadened and the restrictions imposed upon it were directed chiefly at the use of, rather than the acquisition of, the information discovered, although concerns about cost have risen to prominence in recent years. (7)

The central notion of the discovery practice set out in the rules is that the right to take statements and the right to use them in court must be kept entirely distinct. By this method discovery at the pretrial stage is not fettered with the rules of admissibility that apply at a trial, and greater freedom is here allowed, but restrictions are imposed on the use of the products of discovery that preserve traditional methods of trial. (8)

Rule 26 contains the central provisions on the scope of discovery.  These provisions control all of the particular discovery devices. However, even before the 1970 rearrangement, it was widely recognized that the discovery rules do not provide a series of isolated devices. They represent, instead, an integrated mechanism for narrowing the issues and ascertaining the facts.(9)

By the use of one or more of these procedures, a party should be able to prepare for trial in a manner that will promote the just, speedy, and inexpensive determination of the action as is enjoined by Rule 1. (10)

The courts recognized the utility of the discovery rules and construed them liberally (11) so that they could better achieve the purposes for which they were intended. Some of these purposes are to avoid surprise and the possible miscarriage of justice (12) to disclose fully the nature and scope of the controversy (13), to narrow, simplify, and frame the issues involved, (14), and to enable a party to obtain the information needed to prepare for trial. (15) In this way, discovery was used to put an end to the "sporting theory of justice," by which the result depends on the fortuitous availability of evidence or the skill and strategy of counsel. (16)

From the outset, there have been some who have disagreed with these objectives. (17) With the passage of time, even more have come to doubt whether the objectives have been fully realized. A careful field study of the operation of the discovery system in 1968 reached the following conclusion:

The draftsmen held a utopian combination of hopes about the gains from discovery. They expected that the exchange of information between the litigants would bring to the court more facts, better-reasoned arguments, and a fuller knowledge of the merits of the suit. Part of their hopes has been fulfilled: in an adversarial situation, each side is motivated to introduce all important--and many unimportant--documents and witnesses. It was thought that better mutual knowledge would enable the two sides to agree on the facts and issues, settle more cases, and reduce the number of issues and length of trials. But in an adversarial situation, information is an asset: instead of concluding that the adversary's position is just and strong, each side may think that it can gain victory from the new information. Consequently trials do not seem to diminish in number, become more orderly, or become shorter. The total judicial system may be better off because of the greater amount of information before the court, but it may have acquired these gains at additional net costs in work and money. (18)

By the 1970's, serious questions were being raised about the adversarialness, breadth, cost and intrusiveness of expanded discovery. (19) Reflecting these concerns, the Supreme Court said in a 1975 securities case:

The potential for possible abuse of the liberal discovery provisions of the federal rules may likewise exist in this type of case to a greater extent than they do in other litigation. * * * To the extent that this process eventually produces relevant evidence which is useful in determining the merits of the claims asserted by the parties, it bears the imprimatur of the Federal Rules of Civil Procedure and of the many cases liberally interpreting them. But to the extent that it permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit.(20)

The belief that discovery is being widely abused was voiced also at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in April, 1976. This led to a report of a special committee of the Section of Litigation of the American Bar Association proposing changes in the discovery rules to cure the perceived abuses, (21) and this led in turn to a draft of proposed amendments circulated by the Advisory Committee on Civil Rules in March, 1978, (22) and to a revised, much more limited set of proposals for change in February, 1979. (23) The more limited proposals, with some minor changes, were adopted and became effective August 1, 1980.(24) Fearing that these changes did not do enough to curtail problems with discovery, three Justices dissented from the adoption of these amendments. (25)

Further changes were forthcoming; in 1983 Rule 26 was amended to prompt more judicial limitation of discovery. (26) Discontent continued, however, and in 1991 the Advisory Committee circulated extensive new proposed amendments to Rules 26-37 to curtail excessive discovery, including mandatory disclosure of certain types of information early in litigation. (27) After hearings on these proposals, a more modest set of amendments was promulgated by the Supreme Court in 1993. (28) Three Justices dissented from the mandatory disclosure provisions of these amendments. (29)

The controversy swirling around discovery appears likely to continue for some time. Even if discovery has not been a panacea for all the ills of litigation, a 1968 study reported that it was "used very commonly, particularly in cases that have substantial stakes and that are seriously contested." (30) For many years, the discovery rules were popular with the bar (31) and they have been widely copied in the states. (32) Whether discovery abuse is widespread continues to be debated, (33) but concern with abuse has affected judicial attitudes towards expansive discovery.

1. Prior federal practice: 67 S.Ct. at 388, 329 U.S. at 500, citing Sunderland, The Theory and Practice of Pre-Trial Procedure, 1937, 36 Mich.L.Rev. 215, 216, and Ragland, Discovery Before Trial, 1932, c. I.

2. Trials not to be in the dark: 67 S.Ct. at 388, 329 U.S. at 500, citing Pike & Willis, The New Federal Deposition-Discovery Procedure, 1938, 38 Col.L.Rev. 1179, 1436, and Pike, The New Federal Deposition-Discovery Procedure and the Rules of Evidence, 1939, 34 Ill.L.Rev. 1.

3. Procter & Gamble case: 1958, 78 S.Ct. 983, 986-987, 356 U.S. 677, 682-683, 2 L.Ed.2d 1077.

4. Pleadings relieved of burden: Floe v. Plowden, D.C.S.C.1950, 10 F.R.D. 514, 516.

5. Relation of discovery to pleading: The purpose of pleading under the federal rules is to give notice rather than to provide those details of the issues and evidence that would eventuate at trial; the latter objective is pursued through discovery. Bazal v. Belford Trucking Co., Inc., D.C.Fla.1977, 442 F.Supp. 1089. Tendency under these rules is to discourage motions to compel more definite complaints and to encourage use of discovery procedures to apprise parties of basis for claims made in pleadings. Stromillo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., D.C.N.Y.1971, 54 F.R.D. 396. These rules restrict pleading to the task of general notice-giving and invest the deposition-discovery process with a vital role in preparation for trial. Rudolph Wurlitzer Co. v. Atol, D.C.Minn.1952, 12 F.R.D. 173. The rationale for broad disclosure is that controversies should be decided on their merits rather than upon tactical strategies. Cabral v. Arruda, R.I.1989, 556 A.2d 47, 48, citing Wright & Miller. Eichenberger v. Wilhelm, N.D.1976, 244 N.W.2d 691, 695, quoting Wright & Miller.

6. Three purposes: Weinstein v. Ehrenhaus, D.C.N.Y.1988, 119 F.R.D. 355, 357, citing Wright and Miller.

7. General concept of rules: Donovan v. Prestamos Presto Puerto Rico, D.C.Puerto Rico, 1981, 91 F.R.D. 222, 223, citing Wright & Miller. Civil Pretrial Discovery Symposium, 1988, 33 S.D.L.Rev. 195.Conference Proceedings, National Conference on Discovery Reform, 1982, 3 Rev. Lit. 1.

8. Central notion of discovery practice: Independent Productions Corp. v. Loew's Inc., D.C.N.Y.1962, 30 F.R.D. 377, 381.

9. Integrated mechanism: "The deposition-discovery rules create integrated procedural devices." Hickman v. Taylor, 1947, 67 S.Ct. 385, 391, 329 U.S. 495, 505, 91 L.Ed. 451. Rules relating to discovery must be read in pari materia, and such rules should be interpreted and applied in light of their well-known purposes. Crowe v. Chesapeake & O. Ry. Co., D.C.Mich.1961, 29 F.R.D. 148.

10. Rule 1: Hess v. Pittsburgh Steel Foundry & Mach. Co., D.C.Pa.1970, 49 F.R.D. 271.

11. Liberal construction: Schlagenhauf v. Holder, 1964, 85 S.Ct. 234, 241, 379 U.S. 104, 114-115, 13 L.Ed.2d 152. Hickman v. Taylor, 1947, 67 S.Ct. 385, 329 U.S. 495, 91 L.Ed. 451. Object and purpose of these rules is better accomplished by holding that the scope of discovery is broad and such interpretation will have tendency to eliminate secrets, mysteries, and surprises and should aid in the disposition of cases without trial and in obtaining substantially just results. Ash v. Farwell, D.C.Kan.1965, 37 F.R.D. 553. 


See also the notable statements as to the purpose of discovery, and the liberal construction that should be given discovery rules and statutes, by two state courts in Greyhound Corp. v. Superior Court, In and For Merced County, 1961, 15 Cal.Rptr. 90, 364 P.2d 266, 56 Cal.2d 355, and Boldt v. Sanders, 1961, 111 N.W.2d 225, 261 Minn. 160.

12. Avoid surprise: Brown Badgett, Inc. v. Jennings, C.A.6th, 1988, 842 F.2d 899, 902, citing Wright & Miller. "The purpose of our modern discovery procedure is to narrow the issues, to eliminate surprise, and to achieve substantial justice." Greyhound Lines, Inc. v. Miller, C.A.8th, 1968, 402 F.2d 134, 143.

13. Nature and scope of controversy: The purpose of deposition/discovery procedure under the federal rules is to clarify basic issues between parties and to ascertain the facts or information as to the existence or whereabouts of facts, relevant to those issues. Morrison Export Co. v. Goldstone, D.C.N.Y.1952, 12 F.R.D. 258.

14. Frame issues: Federal discovery rules were designed to provide each party with fullest pretrial knowledge of facts and to clarify and narrow issues to be tried. Nutt v. Black Hills Stage Lines, Inc., C.A.8th, 1971, 452 F.2d 480.

15. Obtain needed information: Hickman v. Taylor, 1947, 67 S.Ct. 385, 388, 329 U.S. 495, 500, 91 L.Ed. 451. Purpose of civil discovery rules is to make possible fair and expeditious preparation of cases, minimizing to extent possible trial time spent in wasteful sparring unrelated to merits of case. Dienstag v. Bronsen, D.C.N.Y.1970, 49 F.R.D. 327. Fundamental purpose of the discovery rules is to bring to light facts bearing upon issues involved in any particular case. Noerr Motor Freight, Inc. v. Eastern R.R. Presidents Conference, D.C.Pa.1953, 14 F.R.D. 189.

16. Eliminate "sporting theory": In re Halkin, 1979, 598 F.2d 176, 192, 194 U.S.App.D.C. 257, quoting Wright & Miller. Mid-West Paper Products Co. v. Continental Group, C.A.3d, 1979, 596 F.2d 573, 579, quoting Wright & Miller.

17. Some disagree: Hawkins, Discovery and Rule 34: What's So Wrong About Surprise-, 1953, 39 A.B.A.J. 1075. "The enthusiasm which greeted the discovery provisions of the Rules when carried, as it has been, to the extent here advocated, that 'the truth should be known before the trial, and nobody should be surprised', seems calculated, however, to weaken the efficacy of ordinary trial procedure. There is a vast difference between surprise and unfair surprise. The one is as beneficial as the other is harmful. Not merely may too many rehearsals, in the form of too much discovery, take the bloom off the opening night, but this absence of freshness may make the performance sterile. A certain amount of surprise is often the catalyst which precipitates the truth. Alternatively it may serve as a medium by which the court of jury may gauge the accuracy of the account." Margeson v. Boston & M.R.R., D.C.Mass.1954, 16 F.R.D. 200, 201 (per Aldrich, J.).

18. Whether objectives achieved: Glaser, Pretrial Discovery and the Adversary System, 1968, p. 234.

19. Questions raised: Federal discovery rules are designed to enable a defendant to elicit the basis for a plaintiff's allegations and to prepare defenses to the charges made; they are not designed to permit a plaintiff to make broad-based allegations without any basis for a belief in those allegations and then to invade the defendant's records in an attempt to determine whether or not a cause of action exists. Equal Employment Opportunity Commission v. Carter Carburetor, Division of ACF Industries, Inc., D.C.Mo.1977, 76 F.R.D. 143, mandamus issued C.A.8th, 1978, 577 F.2d 43, certiorari denied 99 S.Ct. 865, 439 U.S. 1081, 59 L.Ed.2d 52.

20. Securities case: Blue Chip Stamps v. Manor Drug Stores, 1975, 95 S.Ct. 1917, 1928, 421 U.S. 723, 741, 44 L.Ed.2d 539 (per Rehnquist, J.).

21. Special Committee: Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation, American Bar Association, October 1977.

22. Proposed Amendments: Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, March 1978, reprinted 77 F.R.D. 613.

23. Revised proposals: Revised Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, February 1979, reprinted, 80 F.R.D. 323.

24. Proposals adopted: See 85 F.R.D. 521.

25. Dissenting Justices: "When the Federal Rules first appeared in 1938, the discovery provisions properly were viewed as a constructive improvement. But experience under the discovery Rules demonstrates that 'not infrequently [they have been] exploited to the disadvantage of justice.' Herbert v. Lando, 441 U.S. 153, 179 (Powell, J., concurring).

26. 1983 amendment: See 97 F.R.D. 165. For discussion of this provision, see s 2008.1.

27. 1991 proposals: Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, August 1991, reprinted 137 F.R.D. 53, 87-135.

28. 1993 amendments: See 146 F.R.D. 401.

29. Dissenting Justices: See dissenting statement of Justice Scalia, joined by Justices Souter and Thomas, 146 F.R.D. 507, 510-12.

30. Used very commonly: Glaser, Pretrial Discovery and the Adversary System, 1968, p. 79.

31. Popular with the bar: For a survey of lawyers' reactions to discovery, see Wright, Wegner, & Richardson, The Practicing Attorney's View of the Utility of Discovery, 1951, 12 F.R.D. 97.

32. Widely copied: Oakley & Coon, The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure, 1986, 61 Wash. L. Rev. 1367. Note, Discovery Practice in States Adopting the Federal Rules of Civil Procedure, 1955, 68 Harv.L.Rev. 673.

33. Existence of abuse: "I am skeptical that 'discovery abuse' is really a problem in our courts, for in most instances it appears to be absent. Rather than an alarming prospect, perhaps 'discovery abuse' is a scare tactic soon to go the way of 'imperial activist judges,' 'litigation explosion,' 'strike suits,' 'in terrorem class action,' and other exaggerations designed to close the court-house doors to those thought to be unworthy. In any event, we certainly could use much better real-world evidence of those speculations before gearing up to slay something that may not exist." Weinstein, What Discovery Abuse?, 1989, 69 B.U.L.Rev. 649, 653-654. A Federal Judicial Center study of over 3,000 civil cases in six federal districts completed in 1978 showed that in 52% of the cases there was no formal discovery at all, and that only 5% of the cases had more than ten discovery requests. Connolly, Hooleman & Kuhlman, 1978, Judicial Control and the Civil Litigation Process: Discovery 28. A survey of Chicago litigators indicated that in at least 50% of the more complex cases, one party believes that it has avoided revealing something important despite discovery. Brazil, Views From the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 A.B.F. Res. J. 217. In a 1988 survey of federal district judges and attorneys who practice in federal court, a majority of the respondents expressed the belief that lawyers' abuse of discovery process is the single greatest contributor to the high cost of litigation. Louis Harris & Associates, 1989, Procedural Reform of the Civil Justice System. A 1992 study of five state courts by the National Center for State Courts found that formal discovery was conducted less frequently in those courts than might be expected by some opponents of discovery, but that certain types of cases generate more discovery and that higher discovery volume is associated with greater discovery-related motion activity. Keilitz, Hanson & Daley, Is Civil Discovery in State Courts Out of Control?, 1993, 17 St.Ct.J. 8, Keilitz, Hanson & Semiatin, Attorneys' Views of the Civil Discovery Process in the State Trial Courts, 1993, 32 Judges' J. 2.