Wednesday, May 22, 2019
Seth Endo has published Discovery Hydraulics, 52 UC Davis L. Rev. 1317 (2019). Here’s the abstract:
Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. However, like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.
In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information; and (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. Last, but not least, a significant practical benefit is that this analytical approach should provide courts with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.