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.

Modern civil practice turns this approach on its head. Under our current pleading rules, the complaint and the answer provide a tentative view of the parties’ positions, based on preliminary research and investigation. Once issue is joined, full development of the parties’ positions evolves through the process of discovery, the court-mandated production of information from other parties and non-party witnesses. As discovery puts flesh on the bare-bones case presented in the pleadings, the parties may usually amend those pleadings to conform to their evolving understanding of the dispute.

The major tools of discovery include interrogatories under Fed. R. Civ. P. 33, requests for production of documents under Fed. R. Civ. P. 34, oral depositions under Fed. R. Civ. P. 30, and automatic disclosure under Rule 26(a). These tools are discussed in detail in the next chapter; this one addresses more general issues concerning the permissible scope of discovery under the Federal Rules of Civil Procedure.

Perhaps the most fundamental point about discovery is that it is conducted by the parties, not by the court. Interrogatories and requests for production are sent by counsel for the parties to each other, and responses are sent back by counsel. Depositions are scheduled and conducted by counsel. The judge is not present at the depositions, nor does she screen interrogatories and document requests before they are sent. She is there to assist in scheduling discovery and resolving disputes that arise during the exchange, but does not directly participate in the exchange herself.

However, the devices of discovery, established by court rule and enforceable by the court, give counsel for the parties powerful mechanisms for demanding the production of evidence from those who have it. Through discovery requests, counsel may force opposing parties and other witnesses to give oral testimony on any issue in the case, and can force opponents to produce even the most damaging “smoking gun” documents lurking in their confidential files. In most cases, it is effective use of these expansive discovery tools, not trial, that determines the value and the outcome of cases: