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"The impact of litigation on neurologic research" II

If one looks past some snide anti-reform remarks by Peter Nordberg, one finds a comprehensive and persuasive dismantling of the policy proposals in the Neurology article we linked to earlier. As Nordberg suggests, the problem here—and any solution—is related to discovery abuse, rather than blanket exemptions of scientists from discovery.

To float a possible solution, why not compensation of non-litigants subject to subpoenas by the party requesting discovery? Any unfairness can be balanced through an expansion of FRCP 36 and analogous rules: one party issues a request for admission to an adversary; if the point is contested and requires third-party discovery to resolve, then the losing party compensates the party who needed to request discovery. This not only reduces the burdens on innocent third parties, it should narrow the need for discovery in the first place as well as reduce the incentive for the proverbial fishing expedition.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.