Discovery Problems In Civil Cases

Overview

The proper scope of discovery and the effect of discovery on the costs of litigation in civil cases have been controversial issues since the concept of notice pleading was introduced. The modern role of discovery, effectuated in the 1938 Federal Rules of Civil Procedure, continues to draw detractors and supporters. Surprisingly, there is little difference between the arguments of the 1930s and those of today. Nevertheless, these arguments have taken on new dimensions in recent years because of the increasing ...
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Overview

The proper scope of discovery and the effect of discovery on the costs of litigation in civil cases have been controversial issues since the concept of notice pleading was introduced. The modern role of discovery, effectuated in the 1938 Federal Rules of Civil Procedure, continues to draw detractors and supporters. Surprisingly, there is little difference between the arguments of the 1930s and those of today. Nevertheless, these arguments have taken on new dimensions in recent years because of the increasing costs of litigation and the fact that discovery accounts for a substantial portion of the costs of civil litigation. This study on the nature and extent of discovery abuse was prepared by the Federal Judicial Center, the research, development, and training arm of the federal judicial system.
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Product Details

  • ISBN-13: 9780894990175
  • Publisher: Books for Business
  • Publication date: 12/1/2000
  • Pages: 132
  • Product dimensions: 0.28 (w) x 8.25 (h) x 11.00 (d)

Table of Contents

I. Introduction 1
II. The Survey 4
Methodology 4
Survey Results 5
III. Discovery Problems Perceived by Reporting Attorneys 10
Resistance to Discovery 11
General Resistance 11
Assertion of a Privilege 12
Resisting Document Production 13
Resisting Answers to Interrogatories 16
Overdiscovery 18
Expert Testimony 18
Novel Theory 20
External Cause of Problems in Performance and Interpretation of a Contract 23
Groundless Claims 24
Isolated or Single Occurrence of Misuse or Abuse of Discovery 27
IV. Discovery Problems Perceived by Opposing Attorneys and Judges 30
Resistance to Discovery 30
Overdiscovery 32
Case Studies: Relationships Between Opponents' Perceptions and Discovery Problems 34
V. Differences Between the Resistance Cases and the Overdiscovery Cases 40
Amount of Discovery 42
Distribution of Discovery Between Reporting and Opposing Counsel 43
Amount of Time for Discovery and Case Disposition 44
Motions to Compel Discovery 44
Motions for Protective Orders 46
Motions for Sanctions 47
The Ad Damnum 49
The Number of Parties 49
VI. Factors Affecting Discovery Problems 50
The Parties and Their Relationship 50
Relative Resources of Parties 50
Motive for Bringing Suit or Defending an Action 51
Animosity Between the Parties 51
Substantial Interest Beyond the Claim Itself 52
Multiple Parties 52
The Attorneys and the Law Firms 53
Comparative Experience of Opposing Attorneys 53
Comparative Degree of Specialization 54
Protection Against Legal Malpractice Claims 54
Comparative Attorney Styles 55
Acrimony Between the Attorneys 56
Acquaintance of the Opposing Attorneys 56
Relative Size of Law Firms 57
Comparative Law Firm Styles 58
The Attorney's Relationship to the Client 59
The Attorney's Control Over the Case 59
Direct Contact Between Attorney and Client 59
Organizational Problems in Coordinating Responses 60
The Fee Arrangement 60
The Judge and Judicial Procedures 61
The Judge's Knowledge and Experience 61
Extent of Judicial Control and Early Involvement 61
Case Characteristics 65
The Timing of the Decision to Sue 65
The Claim for Relief 66
Frivolous Claims 66
Novel Theory 66
Counterclaims 67
Expert Testimony 67
The Ad Damnum 68
Peripheral Participants 68
The Rules of Civil Procedure 69
VII. Conclusions and Recommendations 72
Conclusions 72
Differences Between Resistance and Overdiscovery Cases 73
Differences in Solutions 75
The Nature of Discovery Abuse 76
Professionalism and Ethics 76
Judicial Awareness of Costs 77
Broader Implications 77
Recommendations 78
Appendix. Case Studies 82
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