Opting Out of Discovery
62 Pages Posted: 17 May 2018 Last revised: 29 May 2018
Date Written: May 3, 2018
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. The Article justifies this proposal in both historical and efficiency terms, and concludes by considering objections to the proposal.
Keywords: Civil Procedure, Discovery, Jury Trial, Pretrial Procedure
JEL Classification: K15, K40, K41
Suggested Citation: Suggested Citation