Tuesday, November 15, 2016
“I’m not saying there was a conspiracy, but if one wanted to upend the whole system, it would be foolish to do a full-frontal attack. Instead, go after a technical rule that’s so boring I don’t even teach it to my civil procedure class, but which affects everything.”As it happens I was talking about this with A. just the other night. The rule that is referenced in the above quotation, from Elon University School of Law professor Eric Fink, is the rule pertaining to pretrial discovery in federal court. As it happens, this is my chief area of academic interest, which may be why I am not a full-time academic. Nobody thinks discovery is particularly interesting, except me, and actual practicing lawyers. Law professors will frequently say, "I used to be a litigator," and to the extent that this is true what they typically mean is that after they did a year or so as a judicial clerk they worked in a large firm reviewing material received in discovery and drafting discovery demands. This is jolly boring work, particularly in the sort of commercial litigation that large firms usually do, and after a few years of this these lawyers-- who really are intelligent persons, and graduated at the tops of their classes, and never in a million years thought that reviewing reams of emails was what their lives in our glamor profession would consist of-- chuck it over and, if they are lucky, become academics. If they teach civil procedure, which most people find painfully dull, they gravitate towards the most intellectually interesting aspect of civil procedure, which is the scope and power of federal court jurisdiction. To the extent that they think about discovery at all what they think is that the basic principle of discovery is to give it up. They are kind of right: the core rule of discovery is that the parties must disclose all relevant information, or information which might lead to relevant information, but it is a lot more nuanced than that, and it is, I think, an overlooked subject. For a brief moment there was a flurry of academic interest in so-called "e-discovery", but that moment has largely passed.