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

Tidmarsh, Jay, Opting Out of Discovery (May 3, 2018). 72 Vanderbilt Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3172889

Jay Tidmarsh (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-6985 (Phone)
574-631-4197 (Fax)

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