Recently I have looked internationally to address the civil procedure problems that keep me up at night. There are other legal systems, after all, and the U.S. way of doing things is not the only (or even best) way. Comparing procedural systems may reveal things about our own system that are easy to miss. One is reminded of the David Foster Wallace story about fish in water:
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”
Rick Marcus, a true master of the field, helps us notice the water of discovery with an article written for a festshrift honoring Italian procedural scholar Nicolo Trucker. Marcus speaks from a position of significant authority. Along with being a co-author of the leading civil procedure treatise and a leading procedure casebook, Marcus serves as the reporter for the Advisory Committee on Civil Rules, the ad hoc committee responsible for review and amendments of the Federal Rules of Civil Procedure.
The article discusses the “exceptional” nature of American discovery. This may surprise those familiar only with U.S. litigation. It certainly surprised me when I began practicing and worked on my first transnational case. In civil law jurisdictions there tends to be 1) greater oversight by the judge, 2) fewer tools for the parties to compel disclosure of potential evidence from each other and third parties, and 3) principles such as nemo tenetur edere contra se that further limit what can be compelled in litigation. Many view the U.S., by contrast, as a place where expansive, party-controlled discovery offers a powerful tool to enforce the law that parties can abuse to induce the settlement of frivolous claims.
Nevertheless, Marcus challenges this view of American discovery exceptionalism. He first provides a historical background of how the U.S. adopted expansive discovery, traced to an overzealous law professor including every discovery tool in the book during the drafting of the first set of Federal Rules of Civil Procedure in 1938. Further reforms lead to a high-water mark in the late ‘60s and early ‘70s – a mark that remains for many the classic picture of U.S. discovery.
But reform efforts starting in the late 70s and extending until today have changed that picture. Recent reforms have led to more judicial oversight and a renewed focus on proportionality to limit what parties can ask for. Those reform efforts are hard to see due to the rise in electronic communications and other electronically-stored information (ESI), which magnifies the volume of discoverable information. Discovery still looks expansive and free-wheeling in the U.S. despite the considerable reforms to curtail it.
Marcus argues that American discovery today is closer to a civil law model that places more judicial control over discovery and more restrictions on what can be discovered. At the same time, the ELI/UNIDROIT Model European Rules of Civil Procedure, introduced in 2020, has moved somewhat closer to “American-style discovery” by eschewing the nemo tenetur edere contra se rule and urging courts in their discovery orders to ensure that “each party . . . have access to all forms of relevant and non-privileged evidence.” Admittedly, the comments to the Model Rules state that they are “very different from US-style discovery.” But, as Marcus shows, US-style discovery is not what it used to be.
Of course, not every European country will adopt the Model Rules. Moreover, differences in the scope of relevance, as well as different attitudes regarding privacy interests, create some notable differences between U.S. and non-U.S. discovery systems. And it is unlikely that non-U.S. systems will allow parties to issue a subpoena without first going to a court, as in the U.S.
But, Marcus notes, “[t]hose divergences may not endure,” citing a 2021 RAND study concluding that “national approaches to mass claims will ultimately converge on something more like the U.S. aggregate and collective litigation model than conventional civil litigation in civil law regimes.” Indeed, comparative procedural scholars in non-U.S. settings have highlighted the benefits of expansive information-sharing for the administration of justice.
I like this piece lots. Like all of Marcus’s writings, it is beautifully written and easy to read. Marcus has a gift for conveying the complexity of his subject and his own mastery of it in an accessible, non-intimidating way. And the piece corrects some common stereotypes about U.S.-style discovery and information gathering in non-U.S. jurisdictions. Indeed, as other jurisdictions look to U.S.-style discovery as a source of inspiration (or a cautionary tale), we can also look to other systems to inform our own attempts to tame discovery.
