Toward a better discovery process.

• Author: Preuss, Charles F.

HOW OFTEN in recent years have you experienced the distinct feeling that a plaintiff's discovery demands are directed more toward creating a claim of discovery abuse than toward establishing the plaintiff's lawsuit? Too often, no doubt.

In today's litigation setting, few limits are placed on discovery. Relevance is so broadly interpreted that discovery is virtually unrestricted. Courts show little stomach for supervising discovery, and the Rules of Civil Procedure do not facilitate the ability of a willing judge to constrain discovery within the confines of the actual claims being asserted.

Permissive environment

Plaintiffs have capitalized on this permissive environment. Discovery far broader than the claims and defenses being asserted is propounded. An action on the merits is quickly transformed into a case for harsh discovery sanctions, including a default. Chudasoma v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997). A defendant company, rather than its product, becomes the focus of the lawsuit. Resources far in excess of what would be required to respond to inquiries directed at the merits of the plaintiff's claims must be devoted to these burdensome discovery attacks.

Although the defense of lawsuits is a part of any manufacturer's business, it is not the central mission of the business. Nevertheless, plaintiffs often assume that the company's sole purpose is to provide on demand any and all information sought. Objections to this endless discovery are met with assertions of "coverup" and "stonewalling." Motions before a judge unsympathetic to discovery disputes can too easily end up with an order compelling discovery, which in turn can force an unmeritorious settlement, or at lease provide the next plaintiff with an argument that the company has a "history of discovery abuse."

Reform needed

The need for discovery reform is both real and recognized. Indeed, the Discovery Subcommittee of the Federal Judicial Conference Advisory Committee on Civil Rules is reviewing various proposals that could result in significant changes. Noteworthy proposals have been advanced by the DRI Working Group Report on Discovery, a consensus position statement that encompasses broad input from the defense bar, including the Lawyers for Civil Justice Discovery Committee.

This statement sets forth six recommendations:

1. The scope of Rule 26(b)(1) should be confined to the claims or defenses of the party seeking discovery.

2. Because courts historically have...