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Diego A. Zambrano, Missing Discovery in Lawyerless Courts, 122 Colum. L. Rev. __ (forthcoming 2022), Jan. 5, 2022 draft available at SSRN.

Because 98% of civil litigation occurs in state court, we procedure scholars can be criticized for our myopic focus on procedures in federal courts. An emerging body of scholarship is adjusting that perspective by telling us much more about what is occurring in state courts — and it is eye-opening. To pick a few examples, Pamela Bookman and Colleen Shanahan (reviewed here) have shown how, in contrast to “lawyered” federal courts, state courts are often “lawyerless courts” where at least one party is unrepresented. Daniel Wilf–Townsend samples state-court dockets and uncovers, among other nuggets, that ten corporations account for an astounding 24% of the 16 million annual state-court filings. If we are concerned about access to justice, we should heed the advice of Anna Carpenter, Jessica Steinberg, Colleen Shanahan, and Alyx Mark to do more empirical research and more theoretical analysis about the roles of lawyers and judges in the fluid and evolving world of state-court litigation.

Diego Zambrano takes on one piece of this task by exploring how discovery operates in state courts. Zambrano has become a distinctive voice on discovery. He has proposed seeing it as a regulatory tool (in contrast to the usual view that it is meant to aid in the accurate and fair adjudication or settlement of individual cases). His co-authored piece on the myriad ways in which parties can poison the well of technology-assisted review is required reading for anyone who hopes that artificial intelligence will harness and solve the problems of discovery in document-intensive litigation. In Missing Discovery, Zambrano examines how discovery plays out in some of the largest categories of state-court litigation, in which individual litigants are likely unrepresented: small-claims and debt-collection cases, landlord-tenant disputes, family matters, and appeals from agency decisions in areas such as workers’ comp or unemployment insurance.

The article’s first, descriptive contribution maps states’ widely disparate approaches to permitting discovery in these cases. At the federal level, of course, discovery is in theory available in every case (although empirical studies show that, in practice, a substantial minority of cases involve little to no discovery). Federal discovery is uniform and trans-substantive: neither the substance of the dispute nor the amount in controversy disqualifies a case from access to the capacious tools of federal discovery. Not so at the state level. Zambrano focuses on seven states (California, Florida, Massachusetts, Michigan, New York, Pennsylvania, and Texas) whose formal discovery processes diverge from the federal model, documenting how the discovery procedures in the three categories of cases vary state to state and even within a state, depending on the nature of the case. For instance, most state courts allow no discovery in small-claims cases, while a couple do, and others allow at least a judicially led inquiry into the facts. Likewise, three states deny discovery in eviction proceedings but four allow them. When discovery is allowed, the available methods vary from limited subpoenas to the full panoply of discovery tools.

As Zambrano shows, some impulses behind restricting discovery are understandable. Unrepresented parties are probably unable to afford discovery, so a better-financed party can wield that discovery as a cudgel. Discovery is also complex, and unrepresented parties are not likely to be successful in navigating those complexities. And discovery adds a measure of delay. Balanced against these justifications for “missing discovery” are the costs of denying parties access to information—decreased accuracy, a diminished sense of participation and fairness, and a greater incentive for repeat players to engage in unlawful behavior on which discovery would have shone a bright light.

Zambrano’s second, anormative contribution analyzes whether the lack of discovery in mostly lawyerless courts is suboptimal. He concludes that it is. Seeking a “sweet spot” between no discovery and full discovery, he develops three design principles — imposing discovery only on sophisticated parties, requiring discovery only from parties who possess “actually relevant” information, and expanding discovery to its full scope only when the alleged wrongdoing has broader significance than the dispute between the parties. He cashes out those principles into a concrete “open file” proposal that operates somewhat like a prosecutor’s Brady disclosures on the criminal side—sophisticated parties such as landlords or debt-collection companies must deposit all relevant documents into a publicly available file.

Zambrano admits that “unlawyered” parties might be unable to make good use of this evidence, as they lack the legal knowledge and sophistication to appreciate the significance of much of the disclosed information. He hopes that public disclosure of this information will have a positive regulatory effect on repeat players. Debt collectors and landlords might reform their dubious practices rather than distribute information about those practices into the public arena, where the little guys fortunate enough to have legal representation might could use damaging disclosures. It is in “the shadows of litigation,” as Zambrano puts it, where an open-file approach might see its greatest effect. This open-file approach links back to Zambrano’s broader view of discovery as a regulatory measure.

Having proposed both direct and incentive-based means to thread the needle between excessive and insufficient discovery, I find a great deal to admire in Zambrano’s design principles and his open-file proposal, as well as his idea of using state courts as laboratories to build a better discovery mousetrap than the one in the Federal Rules. Nonetheless, given that Zambrano predicts modest increases in accuracy of dispute resolution, the case for an open-file system comes down to the uncertain strength of the expected regulatory effect. And that uncertainty wraps into the broader question of whether “discovery as regulation” is the right way to think about discovery in general and one-way mandatory public disclosures in particular.

Perhaps the principal take-aways in the emerging literature on state-court procedure are the prevalence of unrepresented parties and the willingness of sophisticated repeat players to design litigation strategies to take advantage of a lawyerless opponent. Frederick Wilmot–Smith’s important Equal Justice argues convincingly that a true commitment to equal justice requires a radical reinvention how societies allocate legal services among presently lawyered and presently unlawyered parties. Requiring repeat players in state courts to disclose information on a mandatory and public basis renders unjust systems less unjust. But that is not the same as making those systems just.

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Cite as: Jay Tidmarsh, Discovery in State Courts, JOTWELL (May 27, 2022) (reviewing Diego A. Zambrano, Missing Discovery in Lawyerless Courts, 122 Colum. L. Rev. __ (forthcoming 2022), Jan. 5, 2022 draft available at SSRN),