Addressing the Adversarial Dilemma of Civil Discovery

There can be no question that the emergence of modern pretrial discovery has contributed enormously to making the conduct of a lawsuit a more fair, just, and efficient process. But discovery also offers a substantial potential for mischief. Since few civil cases today are actually resolved at trial, trouble in the pretrial phase of litigation signals potentially major problems in the legal system's role as the nation's primary dispute resolution mechanism. It is the purpose of this Article to examine the issue of discovery abuse in light of the fundamental adversarial dilemma of the discovery process and propose a new approach to reform which takes cognizance of the inconsistency between party-to-party disclosure of significant case-related information and the basic adversarial nature of litigation.