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Edith Beerdsen, Discovery Culture (Mar. 14, 2022), available at SSRN.

Discovery drives U.S. civil litigation but rarely grabs the public’s attention. Recent high-profile cases offer exceptions to this rule. In 2022, MyPillow CEO Mike Lindell’s refusal to participate in the discovery process in the $1.3 billion defamation claim brought against him by Dominion Voting System made national news. A few months earlier, Remington Arms garnered major media coverage after it produced thousands of cartoons, emojis, and other seemingly irrelevant images in response to a document request in the lawsuit brought by ten families of victims in the Sandy Hook shooting tragedy. These aggressively unlawful discovery machinations might simply demonstrate disregard for the rule of law in these contentious times. But civil discovery’s time in the shadows also might embolden parties’ misbehavior.

In Discovery Culture, Edith Beerdsen argues that discovery is primarily an extralegal practice governed by the informal norms of the legal community, which can explain Lindell and Remington’s behavior and more. Beerdsen explores this phenomenon and how it interacts with formal legal authorities to influence parties’ decisions about what discovery requests are reasonable, when to cooperate, and when to seek the court’s intervention. Beerdsen’s descriptive and theoretical accounts of how discovery functions greatly add to the study of American civil litigation.

Identifying Discovery Culture is a major contribution by itself. It can be hard to see how discovery functions because it is a stage of litigation that largely happens away from the court’s active supervision. And, even when a discovery dispute is brought to a judge, formal orders are rare and appeals are virtually unheard of. Despite these challenges, Beerdsen finds a plethora of evidence for Discovery Culture. She identifies multiple statements by lawyers describing how regional or practice norms shape how they handle discovery and related disputes. She charts changes to the Federal Rules of Civil Procedure designed to account for existing discovery practices. Most strikingly, Beerdsen examines ten years of deposition disputes from three “middle-of-the-pack federal district courts with roughly typical caseloads.” The study found few formal orders, consistent with her hypothesis that parties resolve most disputes without judicial interventions interpreting Rule 30(a). And those uncommon orders involved instances in which the Rule requires a court order regardless of the parties’ agreement, flagrantly obstructive behavior, or especially unusual fact patterns.

Having identified Discovery Culture, Beerdsen specifics its nature and fit within existing models of extralegal practice. Beerdsen pushes back on the notion that discovery neither is governed by much formal law nor the “shadow of the law.” She provides a thoughtful description of the law of discovery and broader ruminations on the nature of law itself. She fits Discovery Culture within Robert C. Ellickson’s “order without law” framework. The key idea is that, especially in close-knit communities, individuals’ primary conduct is dictated by social norms even if those norms contradict formal legal authorities. Beerdsen provides a rigorous, extended account of the framework and how it describes discovery better than a traditional, positivist account of the law.

Ellickson’s study of order without law in Shasta County’s agricultural community provided a more optimistic account than Beerdsen’s description of civil discovery in federal court. She discusses several shortcomings, including the risk that the flexibility and indeterminacy of cultural norms may exacerbate the unequal power of parties or lead to violations of other trans-substantivity norms. She proposes several solutions, including enhancing required disclosures that provide outsiders with a better sense of prevailing cultural norms and could be used to develop additional reforms.

Beerdsen’s Discovery Culture is an important and timely work that identifies a previously unrecognized driver of discovery. But the article is not just for discovery enthusiasts. It is best understood as a case study explaining the role of rules within American civil litigation.

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Cite as: Seth Endo, “Order Without Law” in Discovery, JOTWELL (March 21, 2022) (reviewing Edith Beerdsen, Discovery Culture (Mar. 14, 2022), available at SSRN), https://courtslaw.jotwell.com/order-without-law-in-discovery/.