Two New Windows Into Discovery

Seth Endo

About thirty years ago, Paul D. Carrington observed that the discovery stage of civil litigation is a “means of correcting imbalances in … power that are productive of injustice.” Two recent articles—one by Miyoko T. Pettit-Toledo and one by James Stone—illustrate the lasting power of that reflection. While each takes on a different aspect of discovery, both pair thoughtful empirical work with probing critical analyses that get at the very real stakes for litigants. And each, in effect, applies a version of the old test for a person’s character by addressing how various discovery systems treat the most vulnerable amongst us.

Pettit-Toledo’s The Politics of Proportionality in State Civil Rulemaking analyzes state responses to the 2015 amendments to Federal Rule of Civil Procedure 26(b)(1), which controversially integrated a proportionality element into the definition of the scope of discovery. Proponents lauded its potential for stemming costly discovery. Critics worried that it would be used to stifle necessary factfinding. But, as Adam Steinman identified, the battle over the amendment ultimately would be fought in its case-by-case application in the lower federal courts. Pettit-Toledo follows a natural corollary flowing from the federal rules’ historical influence on state procedure: how states respond to the rule change also is a significant part of the story.

Pettit-Toledo is the first scholar to systematically review fifty states’ responses to the 2015 proportionality amendment. She divides them into three groups: (1) fourteen states adopted the change; (2) four rejected the change, and (3) the remaining thirty-two had not yet visited the issue. While this topline finding would be helpful by itself, Pettit-Toledo unearths various states’ rationales for taking action, drawing insights into individual states’ policy preferences and the potential flexibility of the amended rule.

She also makes a significant conceptual contribution to the discovery literature. She applies Eric Yamamoto’s “Critical Procedure” framework to reveal “the political and ideological preferences of rulemakers and how that affects the revision and application of rules.” Combining these insights with the survey, Pettit-Toledo rehabilitates the proportionality amendment, explaining how it can be used to cure power asymmetries, elevate state judges who often are more diverse and connected to their local communities than federal judges, and offer historically disempowered litigants a greater voice. Building out this last point, Pettit-Toledo explains how discovery in civil litigation can amplify calls for social justice.

Stone’s The Prison Discovery Crisis likewise considers how discovery can be a tool for justice, adding to a growing literature examining incarcerated people’s relationship to civil procedure. Stone canvasses both the written and unwritten rules of discovery in civil litigation brought by incarcerated individuals against their jailers. He interweaves case analysis with interviews with federal judges, staff attorneys, prison-rights lawyers, formerly incarcerated people, and prison officials to detail how discovery perpetually fails in these civil-rights lawsuits. He identifies aspects of incarceration that systematically diminish the promise of liberal discovery. Discovery rules are not a good fit for an environment in which most of the evidence is under the defendant’s control, the plaintiff has few resources, and there is a strong underlying hostility between the parties.

But The Prison Discovery Crisis does not leave it here. Stone analyzes two hundred cases brought by individuals incarcerated in Menard Correctional Center in the Southern District of Illinois and the Louisiana State Penitentiary in the Middle District of Louisiana to identify which discovery practices influence prisoner litigation outcomes. Based on this empirical work, Stone offers several prescriptions. He suggests courts recruit counsel and standardize a discovery process tailored to incarcerated individuals’ circumstances and claims. While the proposed reforms are thoughtful, even if none are adopted, The Prison Discovery Crisis will have a real effect by telling a vital story about the power and peril of civil procedure that likely is unfamiliar to many scholars and rulemakers.

The Politics of Proportionality in State Civil Rulemaking and The Prison Discovery Crisis are innovative scholarly works. But one final attribute inspired me to cover them together: at their respective cores, they offer realistic but optimistic views of what civil procedure can be and how discovery’s information-forcing functions can serve as engines for social change. And they stand as reminders of the transformative power of the law during a time when it is easy to be cynical.