Discovery Innovation: Discovery Reform and Federal Civil Rulemaking

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations.

Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better information. Finally, discovery reform and the committee’s responsive innovations are true to the ethos of the rulemaking process, a process that was designed to be reflective, deliberative, and adaptive.