The John M. Olin Center

Paper Abstract

959. David Rosenberg, Anne Brown, Jaehyun Oh & Benjamin Taylor, A Plan for Reforming Federal Pleading, Discovery, and Pretrial Merits Review, 06/2018; forthcoming in Vanderbilt Law Review.

Abstract: We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits--problems largely attributable to discovery. The proposed reforms establish an affirmative disclosure mandate that sharply reduces the role of discovery by shifting most of the parties’ burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process eliminates Rule 12(b)(6), (c) and (f), with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to fully disclose discoverable matter as to which they have exclusive or superior practical access (“asymmetric information”), but only if the initiating party’s pleading makes a summary-judgment-proof showing on all elements of their claims or defenses that are unaffected by the information asymmetry. Discovery, if any, would generally be deferred to the post-pleading stage and restricted to court-approved targeted use as may be needed for purposes of facilitating resolution of cases by summary judgment, settlement, or trial preparation. Compared to the current regime, the reformed pretrial process should enable courts and parties to resolve more cases on the merits, more cheaply, quickly, and reliably, thus increasing deterrence and other social benefits from the use of civil liability to enforce the law. We note that tests of these projected benefits are underway in two district court pilot projects recently launched by the Federal Judicial Conference to evaluate “Mandatory Initial Discovery” rules that employ an affirmative disclosure mandate similar to, but was developed independently of, our proposal.

959: PDF