When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed very limited-is too often ignored in favor of reflexive vilification. Second, critics rarely consider the public benefits of discovery or its positive externalities, instead focusing mostly on its private, largely monetary costs and benefits.' The only way to prevent discovery from being abused is to know more about it and to evaluate its full costs and benefits. This Article proposes a modest change to litigation practice to help scholars, judges, and policymakers learn the truth about discovery. I propose that every discovery request be entered in the court docket. Given electronic filing, courts and litigants will incur few costs from this change, and researchers can analyze the information collected to determine the extent of discovery use and abuse.
Alexandra D. Lahav,
A Proposal to End Discovery Abuse,
71 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss6/9