Introduction: Reflections on the Future of Discovery in Civil Cases

First, we have a long way to go to educate judges about the benefit of active judicial management of the discovery process and the proportionality requirement. Second, just telling judges to "go forth and actively manage" without showing them concrete ways to do it in realistic case settings is not going to be effective. I am happy to report that thanks to the hard work of Judge Jeremy Fogel, director of the Federal Judicial Center, the educational programs for new and experienced judges alike now include special emphasis on management of the discovery process and the proportionality requirement. And the instruction is interactive, using realistic fact patterns that allow the judges to see how to get the job done and the benefit to them by doing so.

After all, the less time you have to spend resolving formally briefed discovery disputes, the more time you have to work on the substantive issues in your cases. Judges who see the benefit of actively managing their dockets to achieve proportionality are more apt to do so-that's the great thing about self-interest. For anyone interested in more information about the study I did, including more detailed discussion of the proportionality techniques disclosed by the review of cases, or anyone having difficulty sleeping, I wrote a law article about it that was published by the University of Texas School of Law's journal The Review of Litigation. It is found in the Winter 2017 edition, Volume 36, Number 1.19