![]() ![]() They decide the length and number of depositions that may be taken, compel or protect against the production of large numbers of documents and electronic data searches, serve as gatekeepers for expert witness testimony, and even decide whether the parties may take discovery at all until any motions to dismiss have been resolved. ![]() ![]() For civil litigation in federal court, district and magistrate judges make many decisions about discovery that affect the cases before them. The current discovery system is also designed to proceed without the direct involvement of judges unless a dispute arises.ĭue to the important costs and benefits of discovery, decisions that affect the scope, timing, or availability of discovery are enormously consequential. Engaging in discovery allows both sides to more fully assess the strengths and weaknesses of claims and defenses. Discovery equalizes information asymmetries, thereby enhancing settlement prospects and also reducing surprises and gamesmanship at trial. Some people also take the view that our discovery system allows for “discovery abuse.” However, despite these costs and burdens, discovery has many benefits as well. Discovery can impose significant costs on both parties and may even take up the court’s time if discovery disputes arise. Because the decision whether or not to stay discovery in this situation is so consequential, this Article examines what judges are doing currently on motions to stay discovery and recommends prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure.īy far the largest driver of litigation costs is the cost associated with discovery, and thus access to discovery can have significant effects on parties and the outcomes of cases. However, in cases where a motion to dismiss is filed, judges are routinely asked to stay discovery while that motion is pending. Under the Federal Rules of Civil Procedure, discovery is intended to occur with limited intervention by the court, absent a dispute arising. Discovery can be costly and burdensome, but it also enables settlement, reduces informational disparities between parties, and clarifies issues for trial. Discovery plays a key role in our modern federal courts. ![]()
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