"Looking backward" to 1938.

• Author: Marcus, Richard
• Position: Federal Rules of Civil Procedure history

INTRODUCTION I. THE BEGINNINGS. II. THE CONTEMPORARY LITIGATION REALITY. A. The Heroic Model: Civil Rights Litigation B. The Private Attorney General Model. C. Tort Litigation D. The New World of Corporate Litigation III. THE CENTRAL ROLE OF DISCOVERY A. Initial Disclosure. B. Proportionality IV. THE TWENTY-FIRST CENTURY PERSPECTIVE A. The Digital Revolution. B. The Rest of the World. CONCLUSION. INTRODUCTION

It is a pleasure to contribute to this celebration of the seventy-fifth anniversary of the Federal Rules. As one who has been something of a rulemaking insider for over twenty percent of the seventy-five years since the Federal Rules came into effect, I suppose I incline towards being an apologist--at least regarding recent developments.

I intend to focus mainly on the introduction and evolution of broad discovery. In part, that's because discovery has been an almost constant focus of rulemaking for forty years and also is the most acute pressure point in the acidic relations the United States has had with the rest of the world due to distinct procedural arrangements. In addition, our broad discovery can serve as an avatar for the most aggressive visions of the peculiar American institution of private litigation as a force for good or evil. Not surprisingly, my general view is that the rulemakers have sought (fairly successfully) to steer a middle course between the most aggressive supporters and critics. Today, though, it may be that Silicon Valley is the source of greater challenges for discovery rules than either camp of critics.

I take my theme for this Essay (1) from Edward Bellamy. In 1888, fifty years before the Federal Rules went into effect, Bellamy published a book called Looking Backward (2) Many today have never read it, perhaps never even heard of it. But when it appeared, it was an instant and enduring sensation. According to Erich Fromm,

[I]t is one of the few books ever published that created almost immediately on its appearance a political mass movement. Between 1890 and 1891 one hundred and sixty-five 'Bellamy Clubs' sprang up all over the United States, devoted to the discussion and propagation of the aims expressed in Looking Backward. The Populist Party, which at its peak attracted over one million votes throughout the States, was to a large extent influenced by Bellamy's ideas, and got many of its votes from his adherents. (3) I invoke Bellamy because his book provides a contrast for our reflections in this symposium. The book is a first-person description by a wealthy Bostonian from 1888 who, due to miraculous circumstances, goes to sleep that year and awakens in 2000 to find himself in an utterly transformed Boston. Although the "Robber Baron" epoch into which the narrator was born was characterized by divisions between rich and poor considerably starker than those in the United States today, Bellamy's Boston of 2000 was completely different. Humanity had finally learned the lessons that the mid-nineteenth century "rationalists" had urged, and everyone was contented, well-fed, and well-supported--with retirement at age forty-five. Not only was there universal health care, but almost all other needs were met, and people led fulfilled lives. Had he been able to visit to the actual Boston of 2000, Bellamy would surely have been sorely disappointed. The consequences of the Great Recession since then would only deepen his distress.

As Voltaire supposedly said, "the perfect is the enemy of the good," and Utopians may be the bane of all reformers who operate in the world as it is rather than as it might be in the imagination of those with uncommon imaginations. But it seems to me a useful device to reflect on our seventy-five-year experiment with the Federal Rules by thinking about how the framers of that breakthrough, who almost surely were familiar with Bellamy's book, would react to our contemporary litigation world if they could visit it. Would they be similarly disappointed? My guess is that they would not--though they would probably be quite surprised by many things that we take as commonplace.

In this Essay, I first sketch what appear to be the attitudes of the framers. I then explore what has happened to change litigation since 1938 and consider the ways in which discovery reform has responded to the challenges of those developments. Finally, I will explore the new discovery challenges of the twenty-first century that may justify a reconsideration of some assumptions about getting "all" the relevant information. I conclude that the gradual adjustments we have seen and may see are true to the framers' vision and don't deserve denunciation, even by those who think some of them wrong-headed.

1. THE BEGINNINGS

   Professor Subrin cogently set the scene for the rulemakers in a 1997 presentation:

   Although the drafters did have large cases in mind, I think it is fair to say that the drafters as a group would be amazed at how immense many cases now become and how prominent a role discovery plays in that process. Some things they could not have known: the advent of copying machines and computers; the huge size of law firms and litigation departments; the many factors leading to the large overhead of major firms; and the enormous growth and change in substantive law. I think the drafters also would have been surprised at the role of civil claims as, to use Professor Hazard's words, 'an integral part of law enforcement in this country ... [T]he scope of discovery determines the scope of effective law enforcement in many fields regulated by law.' (4) Regarding discovery, the record confirms what Subrin said. Discovery surely existed before 1938. There were even treatises about it in the nineteenth century. (5) As shown in a three-part study by Dean Langdell in the 1890s, however, the discovery provisions that existed then look now like a cavalcade of minutiae. (6) A comprehensive 1928 examination of the same basic subject by a young Professor Fleming James, stressing American provisions, does not appear much different. (7) Surely the variety of specific differences and qualifications that these articles enumerate were important to the practitioners of the day, but they seem alien to us now.

   The Federal Rules broke with that past, enabled by the 1934 adoption of the Rules Enabling Act, which Professor Burbank has chronicled so ably. (8) Although the Enabling Act's path to adoption was long and tendentious, it was not much preoccupied with the detail of the rules to be adopted. In particular, the Enabling Act did not focus on discovery. (9) Roscoe Pound's famous 1906 speech to the American Bar Association, which many credited with prompting the reform drive that led to adoption of the Enabling Act nearly thirty years later, similarly did not focus on discovery, even though it enumerated myriad reasons why the American public would be dissatisfied with the administration of justice and particularly criticized extreme adversarial behavior. (10)

   Everyone recognizes that the post-1938 reality has brought discovery to the fore. After denouncing "fishing expeditions" in 1911, (11) the Supreme Court concluded within a decade of the adoption of the Federal Rules that "the time-honored cry of 'fishing expedition'" should not prevent discovery. (12) In 1965, Professor James published the first edition of his civil procedure treatise, which continues to thrive to this day under the leadership of Professor Hazard. In his preface, Professor James explains that a new treatise was needed because Dean Clark's code pleading treatise had been eclipsed by developments in litigation; pleading problems (Clark's focus) had yielded in importance to the needs of discovery. (13) One "great development" that explained this shift and "changed the face of procedure" was "the federal rules of civil procedure together with their many state counterparts." (14)

2. THE CONTEMPORARY LITIGATION REALITY

   "[L]itigation in the federal courts has become a world unimagined in 1938."

   --Arthur Miller (15)

   Since contemporary discovery functions in the broader world of litigation, it is useful to reflect on some of the distinctive trends that have emerged since the framers did their groundbreaking work. At least four developments deserve attention: the "heroic model" of litigation in the Civil Rights era, the rise of private attorneys general, the beginning of mass tort litigation, and the increase in corporate litigation. Some of them may, indeed, have depended in part on changes wrought by the Federal Rules. For our purposes, the key question will be whether discovery played a critical role in this development.

   Discovery surely was identified early on as a source of problems; the 1951 Prettyman Report identified coping with huge volumes of evidence as one of the hallmarks of "protracted litigation" that judges should strive to control. (16) But as we continue to deal with efforts to constrain over-discovery, it is useful to remember that the concerns have been with us almost as long as the Rules.

   1. The Heroic Model: Civil Rights Litigation

      Brown v. Board of Education was the ultimate symbol of using litigation to surmount barriers to progress. In a way it has become a cultural icon; "it is surely the only Supreme Court case that has its own National Historic Site." (17) Despite its singularity, it is fair to say that such litigation was the model Professor Chayes contemplated when he examined the procedural implications of "public law litigation" in his 1976 article. (18) For others, such as Professor Fiss, that sort of litigation was the main or sole legitimate function of the public court system. (19)

      One way of looking at the middle third of the twentieth century is that it was a period that persistently aspired toward the sorts of ideals that Edward Bellamy embraced. Roosevelt's New Deal, Truman's Fair Deal, Kennedy's New Frontier, and Johnson's Great Society each had aspects that Bellamy would have endorsed. But it...