Linda S. Mullenix

Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking

A striking feature of the passage of the Civil Justice Reform Act of 1990 was the consensus that some kind of reform of civil litigation was needed. This belief rested not, as one might think, on reliable empirical research, but rather on the myth that Americans over-litigate, especially by abusing discovery. This article documents the belief in American litigiousness which has become a staple of the popular media and traces the myths incorporation, through questionable social science, in the key documents of the civil justice reform movement. Turning to two methodologically rigorous studies of the discovery process, this research both illustrates the real difficulties in documenting discovery abuse and suggests such abuse is rare. Rather than attacking a problem, reform of civil discovery has created unnecessary balkanization and confusion in the civil justice system. The purpose of this article is to document the making and dispersion of a set of beliefs that pervades American culture: the myth of American litigiousness and pervasive discovery abuse. The article chronicles how widespread acceptance of this myth has fueled recent demands for civil justice reform, leading to unfounded and bad rulemaking. If there is a keystone in the arch of civil litigation, it is the pretrial discovery process. The medias constant repetition of the theme of American litigiousness has made discovery a prime target for reformers. As the message of discovery abuse saturated public consciousness, it was reinforced by multiple legislative responses ― of which the Civil Justice Reform Act is but one ― to the perceived problems. The Civil Justice Reform Act is not alone either in embracing the discovery myth or in requiring discovery reform, but merely joins the larger civil justice reform movement taking place in all three branches of federal government and in state governments as well. The CJRA is, however, the most far-reaching of the reform efforts, as a result of its rulemaking consequences at the local federal district court level. What canards inspired the civil justice reform movement? We believe America is the most litigious society on earth not because this is true, but because the media have told us so over and over again. We believe American society has run amok because our fellow citizens have a shameless propensity to file frivolous lawsuits ― again, not because this is true, but because our newspapers and television shows inundate our collective consciousness with examples of outrageous and ridiculous litigation. We believe American civil litigation is out of hand because notoriously greedy lawyers engage in serious discovery abuse ― not because they do, but because litigiousness has become linked in our minds with discovery abuse. This article argues that the massive discovery reform agenda unleashed simultaneously through the Advisory Committee on Civil Rules, the CJRA, and executive branch orders is based on questionable social science, “cosmic anecdote,” and pervasive, media-perpetuated myths. In addition, it argues that the absence of serious empirical research underlying this rulemaking has allowed the development and implementation of questionable discovery rules. Future federal litigants will suffer because in the early 1990s the rulemakers accepted myth as reality, did not do their homework to discover the truth, and then permitted the rulemaking process to be permeated by interest group preferences. Finally, this article suggests that reform of federal civil discovery may not have been necessary at all: There is no strong evidence documenting the alleged massive discovery abuse in the federal courts. The rulemakers never established the existence of discovery abuse before embarking on their crusade to revamp discovery. Indeed, existing empirical studies challenged the received notion of pervasive discovery abuse. The message of this article is simple and not new: Sound, persuasive empirical study ought to undergird every rule reform effort; in particular, there must be convincing evidence that a problem exists before any rulemaking group begins the process of rule revision. Part I describes the pervasive myth of discovery abuse, suggesting that the collective perception of discovery abuse is but one aspect of a larger myth of American litigiousness, itself a pervasive belief that has seized the public consciousness in spite of the existence of contrary evidence. I explain how politicians, lawyers, judges, insurance companies, and other interested parties successfully have used the media to identify American litigiousness as a societal ill. In addition, Part I documents the extent to which the myth of litigiousness and its accompanying evils, including discovery abuse, has permeated our culture. Part II demonstrates that the pervasive myth of discovery abuse rests upon inadequate social science findings. This section critiques the methodology, analysis, and conclusions of the 1988 Louis Harris survey that provided the basis for the 1989 report of the Brookings-Biden task force, Justice For All. This report in turn provided the impetus for the CJRA, as well as, apparently, for the Presidents Council on Competitiveness study leading to the Agenda for Civil Justice Reform. In turn, these materials also formed the bases for many of the discovery reform efforts undertaken by the civil justice advisory groups created pursuant to the CJRA. Part III examines the methodological problems entailed in conducting sound empirical research on discovery and focuses on the differences between survey research and court-based studies. This section also reviews the analyses and conclusions of the 1978 Federal Judicial Center study of discovery in federal courts, the only comprehensive empirical study of federal courts conducted thus far. Not only did this study illustrate the difficulties in studying federal court discovery, but it documented a surprisingly low incidence of discovery in federal civil litigation. This Part concludes with a review of the 1993 National Center for State Courts study on discovery abuse in state courts, whose findings paralleled, and thus substantially validated, those of the 1978 Federal Judicial Center study. Finally, the conclusion examines how the pervasive myth of discovery abuse fed into the civil justice reform efforts of the early 1990s and prompted too many cooks to meddle in discovery reform. It explores the notion that federal district courts are “laboratories” for rule reform, and asks whether the CJRA reports and plans will accomplish useful discovery reform. In their rush to solve nonexistent or undocumented problems, the rulemakers have undoubtedly introduced more problems and inequities into what was arguably a good, working discovery system. Instead of “solving” the problem of discovery abuse, the rule reformers have balkanized the rulemaking process, creating new problems of non-uniform discovery procedure, forum-shopping, and confusion. Not only has this rule-reform effort undermined the overarching philosophy of the Federal Rules of Civil Procedure, it also threatens to produce litigation inequities and unfair results.

I Class Action Settlements negli Stati Uniti.

Il presente saggio descrive il comportamento dei protagonisti delle class action settlements nella giurisdizione delle corti federali nordamericane, in primo luogo analizzando le regole che lo vincolano e in secondo luogo valutando gli incentivi che lo orientano. Il quadro che ne emerge fornisce una dettagliata rappresentazione e una precisa valutazione del modello generale di tutela degli interessi giuridici che le class action settlements federali nordamericane sono designate a conciliare. L’intera indagine e svolta a partire dall’analisi dei due momenti del rito processuale piu importanti in relazione alle procedure di class action: la certification della classe e l’approvazione della proposta conciliativa. La struttura del saggio e scandita da un approccio innanzitutto storico che racconta della graduale emersione (e dell’attuale preminenza) delle settlement classes. Il generale fenomeno di superamento (almeno in termini numerici) delle class action tradizionali ad opera delle settlement classes, quindi, e valutato in relazione al dibattito (dottrinale e giurisprudenziale) che ne ha accompagnato le varie fasi e che ha gradualmente sancito la conformita delle settlement classes in relazione ai principi derivanti dal due process, nonche alla luce della disciplina contenuta nel Class Action Fairness Act del 2005. In particolare, l’a. valuta l’idoneita dello strumento conciliativo rispetto alla tutela dei membri assenti (cioe di coloro nei confronti dei quali l’accordo conciliativo raggiunto sara produttivo di effetti vincolanti, pur non essendo tecnicamente parti del procedimento); alla tutela degli interessi dei defendants; all’esigenza di garantire la tutela delle parti del procedimento rispetto al rischio di collusione tra gli avvocati di attori e convenuti; nonche rispetto alla necessita di garantire l’esigenza di finalita dell’ accordo conciliativo. In questo contesto, l’a. colloca la specifica posizione dei protagonisti delle class action settlement federali in funzione degli interessi che sono chiamati a rappresentare e tutelare nel processo; a tal proposito, infine, l’a. individua nel giudizio sull’adeguatezza della rappresentanza degli interessi della classe il perno attorno al qule ruota l’intero meccanismo di tutela delineato dalle corti e dal legislatore federale nonche il presupposto per tma dettagliata valutazione delle caratteristiche peculiari delle conciliazioni collettive che distinguono queste ultime dalle conciliazioni di controversie tradizionali. Piu in particolare, l’a. osserva come nelle class action settlement la tutela dei diritti dei membri (assenti o parti del relativo procedimento) della classe oggetto della proposta conciliativa venga realizzata per il tramite dell’intervento di una pluralita di soggetti istituzionali, quali i judicial magistrates o special masters, gli objectors, le agenzie governative, i commercial notice e settlement administrator vendors, e che se per un verso la garanzia della sua attuazione non puo ridursi all’attivita degli avvocati dei membri della classe parti del procedimento, per altro verso essa impone un ruolo di assoluta preminenza al giudice della causa, chiamato a esercitare in modo significativo fondamentali poteri di gestione e direzione dell’intero procedimento.

God, Metaprocedure, and Metarealism at Yale

In 1988, Procedure, the result of the collaborative efforts of Professors Cover, Fiss, and Judith Resnik, was finally published. Without a doubt this truly monumental casebook is legal educations publishing event of the year. Not only is the book of great moment to civil procedure teachers, but it is a casebook that makes a dramatic statement about late-twentieth-century legal education. The casebooks very title bespeaks its bold challenge to entrenched educational orthodoxies: it is not a text on civil procedure, nor on criminal procedure, nor on administrative procedure — but on Procedure. It is a casebook distantly rooted in Dean Roscoe Pounds sociological jurisprudence and the Realist movement of the 1920s and 1930s. More than anything else, this casebook is a product of Yale. After almost fifty years of false starts, Yale finally has produced a realist casebook for proceduralists. Whether it will suffer the fate of other realist casebook ventures remains to be seen. Nonetheless, metaprocedure has now formally arrived and for procedure teachers this presents the quite simple question: Metaprocedure — what is to be done?In a legal specialization normally lacking in intellectual excitement, 1988 proved to be a stimulating year for proceduralists. This year market the fiftieth anniversary of both the Federal Rules of Civil Procedure and the Erie decision, events celebrated in no fewer than five academic conferences. Not coincidentally, a significant portion of one conference was devoted to an exploration of metaprocedure and its implications for the law school curriculum. The coalescence of these events in one year has generated excitement, enthusiasm, skepticism, dismay, and despair. In the realm of procedure, eternal verities have proven less than eternal; the traditional canon is under attack; and intellectual pluralism reigns supreme. Senior professors have seen it all before; mid-career academicians are for the most part (to borrow from the 1960s which nurtured this generation of the professoriate) ‘doing their own thing’; and the youngest generation to join procedural ranks is — well — justifiably confused. The appearance of Procedure, then, is central to the introspective self-searching in which proceduralists are engaged. The fiftieth anniversary of the Federal Rules prompted a reassessment of their efficacy in achieving the stated goals of a ‘just, speedy, and inexpensive determination of every action.’ This milestone has also fueled renewed interest in Professor Covers critique questioning the transubstantive nature of the rules.21 Finally, the publication of Procedure has, in effect, set the procedural debate for years to come by challenging the narrow, received tradition of exclusive focus on civil adjudication.This is an essay about the Cover, Fiss, and Resnik casebook Procedure. But, more broadly, it is an essay about the larger academic setting that will either embrace or reject the intellectual approach embodied in the text. It is an essay about the sea changes currently felt across the discipline, where a significant number of teachers now call themselves ‘proceduralists.’ This is a series of reflections on the import of metaprocedure for the traditional canon and for legal education generally.The first section of this essay places the theory of metaprocedure in its historical context. It shows that the development of a broadly conceived understanding of procedure derives from the realist movement at Yale. This section also describes other attempts at realist curriculum and casebook revision and their reception at law schools. With this background in mind, the second part of the essay describes and critiques the Cover, Fiss, and Resnik casebook. The general conclusion is that the authors have presented an exciting, challenging, and highly intellectual conception of the discipline. The casebook fills a long-standing gap of theoretically undernourished procedure texts. The authors have redefined a field of study; reshaped thinking about procedural issues; and recast the dialogue among academic colleagues. The ultimate question is whether this revolution will take hold or whether metaprocedure will pass from the scene as another failed realist attempt at reforming the traditional curriculum.Finally, the third section of the essay attempts to assess the impact of metaprocedure on the current teaching of civil procedure. Thus, apart from its historical roots, metaprocedure is viewed in contemporary context. Here, different approaches to procedural scholarship and education are described, raising challenging issues for the integration of metaprocedure into existing curriculums. Again, the primary question is whether metaprocedure can intelligibly be integrated into current procedure courses, or whether it requires wholesale curriculum reform in order to be truly appreciated as an intellectual framework for understanding the law.