Overview: The New Landscape of Civil Discovery

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CHAPTER I

OVERVIEW: THE NEW LANDSCAPE

OF CIVIL DISCOVERY

A. Introduction

This handbook is an outgrowth of an ABA Antitrust Section

Conference in February 2000 on the practical and anticipated effects on

antitrust litigation of the amendments to the Federal Rules of Civil

Procedure. The conference examined litigation topics ranging from

depositions to expert witnesses and was very practice-oriented. As a

result, this handbook retains the same practical focus whether the reader

is in need of guidance relating to protecting a work-product privilege or

the logistics behind expert witness retention.

Although the conference presentations were anticipatory of the

impact the new Rules might have, the Editors of the handbook also were

aware that additional changes would be made to the Federal Rules of

Civil Procedure in 2001. Further, since the federal district courts, let

alone the Courts of Appeal, did not begin to apply the new Rules in

disputed situations until 2001, publication of the handbook was delayed

in an effort to incorporate discussion of early judicial activity on both the

2000 and 2001 Amendments, while retaining the authors’ predictions and

commentary at the February 2000 conference.

The handbook does not address in detail the specific elements of

any particular antitrust claims or defenses, but provides an overview of

antitrust discovery and general domestic discovery issues under the

Federal Rules of Civil Procedure.1

The last edition of the handbook was prepared in 1981. The

Antitrust Section hopes the reader finds the current handbook helpful in

developing a civil antitrust litigation discovery strategy consistent with

the recent amendments to the Federal Rules of Civil Procedure.

B. The December 2000 and 2001 Amendments

The Judicial Conference of the United States, motivated by a desire

“to reduce the costs of discovery, to increase its efficiency, to restore

1.For an excellent summary of discovery in foreign jurisdictions, see

OBTAINING ANTITRUST DISCOVERY ABROAD,ABA ANTITRUST SECTION

TRIAL PRACTICE HANDBOOK SERIES 1(1990).