Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific Procedure
16 Pages Posted: 27 May 2012
Date Written: January 1, 1994
When procedural reformers and commentators on reform write about procedure-- and I count myself among them-- we display similar proclivities. We must take a position to write effectively. It is difficult to write articles or speeches without a thesis. In articulating the thesis, one tends to break off the rough edges, submerge counter-arguments, and blunt potential opposition by exaggerating opposing claims, ignoring counter-evidence, using feigned accomodation, or writing illogically. Frequently, at key points in our arguments we tend to do a little fudging, particularly at a juncture where the ice is thin.
I have searched for more eloquence, but "fudge points" is the best term I can apply to this phenomenon. These fudge points are examined in this article because they reveal aspects of the original Federal Rules governing discovery. These aspects, which are discussed in part II, invited abuse. The fudge points also reveal why the new mandatory discovery rules are in large measure misguided and will be ineffective. This misdirection is discussed in part III. In part IV, I urge that most cases would benefit from more limited discovery than the original Federal Rules provided. I then explain why many cases which elicit the most discovery and the most discovery problems would be better served by applying procedural rules, including discovery rules, crafted in advance to meet the unique needs of specific case-types.
This is an argument for what I call "selective substance-specific procedure." The term "nontransubstantive procedure" has previously been used to describe the same concept. The idea is that some procedures would no longer cut across substantive case-types. In part IV, I also explain why selective substance-specific procedure does a better job of directly addressing the critical points at which the drafters of the original Federal Rules and the new mandatory discovery rules fudged. At a conceptual level, selective substance-procedure skates on thicker ice than the curret procedural regime. Experimentation in the real world of practice will be necessary to test whether the conceptual strength will be borne out.
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