Vanderbilt Law Review

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In the interpretation and application of the discovery provisions of the Federal Rules of Civil Procedure, one of the most controversial problems is the extent to which discovery is available against the United States when it is a party to an action. Undeniably, the Government is entitled to use the discovery procedures, and it has not hesitated to do so; however, it has often fought vigorously the use of the same procedures against it. At one time the Government argued unsuccessfully that it was entirely exempt from the discovery provisions of the Rules. It has apparently abandoned this argument, but it continues to fight discovery by urging not only its well-recognized evidentiary privileges, but also an all inclusive privilege which, it contends, executive officers alone can apply. In answer to claims of this latter privilege, the courts have gone in all directions, often assuming or inventing such a privilege, and sometimes even applying it, but more frequently finding a way to avoid it.

The purpose of this article is to discuss the unique problems arising as to discovery against the United States as a party litigant. The discussion does not cover the situation where discovery is sought against the United States although it is not a party. Nor does it cover the usual problems which are presented in seeking discovery against any private litigant and which are, of course, also present when the United States is involved. The subject to be discussed can be divided into three parts: (1) whether the United States is subject to discovery; (2) whether there are any special privileges available to it which are not available to an ordinary litigant; and (3) to the extent that there are such special privileges, who decides their application.