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Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN.

Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.

Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery.  Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with  the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes.  Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.”

What follows is a thorough and elegant examination of the relationship between discovery in private enforcement actions and the subpoena power of administrative agencies in analogous regulatory situations, where civil plaintiffs are “quasi-public investigators” and discovery is the “lynchpin of private enforcement.” By laying out the history and justifications for administrative agencies’ broad subpoena powers alongside the purposes of private enforcement litigation, Zambrano makes a persuasive case for a very permissive scope of discovery in these cases. By rooting his argument in the existing structure of American-style discovery, he makes a convincing case that discovery is not simply a tool of private enforcement litigation, but the backbone of private enforcement litigation.

Zambrano uses this inquiry to provide a unifying theory of discovery that moves the discourse beyond standard debates about instrumental justifications. Throughout the article, he is candid about the limitations of this approach.  Much of the force of his argument derives from the unique characteristics of private enforcement litigation, particularly that Congress has delegated much of the enforcement authority in the relevant statutory regimes to private parties. This, of course, excludes a large chunk of litigation based in state law and common law causes of action. Zambrano acknowledges that mass-tort and other complex litigation has a similar structure to private enforcement litigation in that “discovery in mass torts cases produces similar effects [as private enforcement litigation] so it may be illustrative of regulatory discovery.” But he also argues that mass tort litigation does not share the key quasi-public features that make private enforcement litigation such an ideal candidate for a theory of expansive discovery—private enforcement litigation is an extension of the congressional delegation of enforcement power that underlies the exercise of administrative subpoenas, while mass torts arise from a long common law tradition of state law.  Is it possible to have a unified theory of discovery that is premised so heavily on litigation to privately enforce public statutes and ignores a large swath of other litigation in federal courts? To the extent that the argument for discovery in these types of cases is exceptionally strong, one worries where the scope of discovery might land in a mass-tort MDL or any litigation at all outside of the federal system.

Towards the end of the article, Zambrano alights on the idea of trans-substantivity. He intuits that if his theory is heavily predicated on a type of litigation and causes of action that are uniquely situated in the American legal landscape, then he might have a problem with trans-substantivity–the principle (purportedly essential to the Federal Rules of Civil Procedure) that procedural rules apply uniformly across litigation without regard for the underlying substantive law. He points to Rule 26 and argues that the scope of discovery is non-trans-substantive—governed by a case-specific and discretionary standard that is capacious enough to accommodate different factual scenarios and broad enough to incorporate the underlying purposes of different causes of action, such as private enforcement actions.

While the appeal to the flexibility and broad discretion inherent in American discovery practice is a perfectly satisfactory answer, I think it is a missed opportunity to underscore the depth and importance of his article as a whole.  If we continue to conceive of American-style discovery as a means rather than an end, trans-substantivity forms a serious barrier to a theory whose strongest underpinnings are tied to the peculiarities of private enforcement litigation.  But once we have freed ourselves from framing discovery in almost exclusively instrumental terms, discuss it as its own end, and perhaps engage the vocabulary of remedies, the problem of trans-substantivity fades away.  If discovery is not primarily an instrument or tool of litigation, that tool need not be a one-size-fits-all affair.  It is within this larger reframing of the discovery debate that Zambrano’s article will make a lasting contribution that extends far beyond the private enforcement context.

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Cite as: Robin J. Effron, Discovery and the Limits of Transsubstantivity, JOTWELL (March 9, 2020) (reviewing Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN),