Report Says Litigation Discovery System is ‘Broken’

The Institute for the Advancement of the American Legal System (“IAALS”) and the American College of Trial Lawyers Task Force on Discovery conclude in their Interim Report (“Report”) that the civil justice system, while not broken, is in serious need of repair. Significantly, however, they do conclude that the discovery system is, indeed, broken because it costs far too much and has become an end in itself.

The Report is based upon responses from 1,494 Fellows of the American College of Trial Lawyers to a survey developed by the College’s Task Force on Discovery and the IAALS. Of the 3,812 Fellows surveyed, 42 percent responded, a response rate the Report characterizes as “unusually large.” On average, survey respondents have been practicing law for 38 years, with 31 percent representing defendants exclusively, 24 percent representing plaintiffs exclusively, and 44 percent representing both, but primarily defendants.

In short, the Report concludes that the civil justice system is not working because it takes too long and costs too much. While the overall system is in serious need of repair, the survey results show that the discovery system is broken and in need of radical changes. Electronic discovery, which survey respondents labeled a “morass,” came in for the harshest criticism, and many called for a serious overhaul.

Eighty-five percent of respondents thought that litigation in general and discovery in particular are too expensive. As a result, the Report concluded that “[d]eserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.” Report at p. 3.

Survey results also show that notice pleading may be partly to blame for the high cost of discovery because it does not narrow the issues and, consequently, requires extensive discovery. Similarly, survey respondents believe that motions to dismiss and answers to complaints also do not accomplish the goal of narrowing issues. The Report concludes that “a further look at notice pleading may be in order.” Report at 4.

The Report also discusses two additional themes that emerged from the survey: (1) judges should exercise a more active control of litigation from the outset; and (2) local rules are not always consistent with the Federal Rules, and either should be abolished entirely or made uniform. An overwhelming majority of respondents—89 percent—thought that a single judicial officer should handle a case from beginning to end. With respect to local rules, the survey results were more mixed—some respondents thought local rules are detrimental because they promote inconsistency and unpredictability. However, others felt that local rules provide necessary flexibility from one jurisdiction to the next.

Finally, respondents believe that incremental changes to the discovery rules—what the Report calls the “tinkering around the edges” approach—will not solve existing problems. More radical changes are required.