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Troy and O'Tuel on discovery expenses

Dan Troy and John O'Tuel have an important paper for WLF detailing the problem of the growing expense of wasteful discovery (less than 0.1% of pages produced in discovery are designated for use in trial) and suggest a number of tweaks for containing it:

  • A mechanism should be put in place to narrow the issues at the outset of the litigation. That could be accomplished by requiring either: 1) particularized fact pleading; or 2) requiring an early judicial determination of those issues to be tried, after which discovery of those issues, and only those issues, can begin in earnest. The latter proposal mirrors that put forward by the ACTL and is preferred.

  • A change in the scope of discoverable information is in order. Document discovery that requires production of 1,044 pages for every page marked for trial is grossly overbroad. Modifying the definition of discoverable information to those materials directly relevant to an issue to be tried would serve to reduce that inefficiency, reduce costs, allow adversaries to focus on those materials pertinent to their cases, and would bring cases more quickly to a point where they can be tried.

  • Presumptive limits on document discovery should be applied. One proposal discussed at the Federal Rules Advisory Committee conference was "Susman's Checklist." Part of that proposal suggested that discovery of information be limited to five custodians in the first instance, chosen by the requesting party. After production from those five custodians, an additional five custodians may be selected by the requesting party. After production from the second set of five custodians, no further discovery will be had absent a showing of good cause. This proposal is an amalgam of presumptive limits and phased discovery and combines the best attributes of both.

  • Finally, amendments to the Rules should be enacted that directly address preservation and permit spoliation sanctions only where willful conduct for the purpose of depriving another party of the use of the destroyed evidence results in actual prejudice to the other party. A clear preservation rule is needed to supply guidance to litigants in order to counteract inconsistent requirements established by courts around the country.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.