Discovery Hydraulics

6 Pages Posted: 19 Mar 2018

See all articles by Seth Katsuya Endo

Seth Katsuya Endo

University of Florida Levin College of Law

Date Written: March 17, 2018

Abstract

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.

In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information, and; (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. And last, but not least, a significant practical benefit is that this analytical approach should provide court with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.

Suggested Citation

Endo, Seth Katsuya, Discovery Hydraulics (March 17, 2018). Available at SSRN: https://ssrn.com/abstract=3142928 or http://dx.doi.org/10.2139/ssrn.3142928

Seth Katsuya Endo (Contact Author)

University of Florida Levin College of Law ( email )

PO Box 357069
Gainesville, FL 32635
United States

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