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CHAPTER 21

The Scope of Discovery

The Rules Giveth, and the Rules Taketh Away

INTRODUCTION

The big news in civil procedure over the last century has been the demise of pleading and the rise of discovery. In the early common law, pleading played a central role in defining the issues and the factual contentions of the parties. Plaintiffs learned as much as they could about their cases before commencing suit, and then pleaded their cases based on their best guess as to what they would be able to prove. Once the pleadings were closed, the shape of the case was settled; it only remained to be seen whether the parties could prove what they had alleged.

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