Still a Failure: Broad Pretrial Discovery and the Superficial 2015 Amendments

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases.

The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.