45 Pages Posted: 9 Jul 2019 Last revised: 11 Jul 2019
Date Written: 2018
The discovery process in the United States receives more criticism than all other stages of civil litigation combined. Critics complain that discovery in complex cases is too expensive and that its costs are too often disproportionate to the amount at stake in litigation. Yet contracting parties have the power to create their own customized solutions to these problems. Just as they can agree to other forms of bespoke procedure in their contracts from fee-shifting provisions to forum selection clauses and jury waivers, they can also agree to bespoke discovery provisions. Through bespoke discovery, contracting parties can alter the scope and volume of discovery, change the default funding rules, or even eliminate discovery altogether in any future disputes between them. This Article argues that sophisticated contracting parties should negotiate discovery rights the same way they might negotiate other provisions in their contracts. Such private ordering would allow contracting parties to shape the discovery process to their particular needs.
At the same time, however, bespoke discovery is not a panacea for the problems in the litigation system. Bespoke discovery can address certain problems with the discovery process, but it can also exacerbate existing inequalities. It is one thing for two sophisticated parties to bargain over the scope of their discovery rights in future litigation. It is another thing altogether for these same sophisticated parties to include bespoke discovery in their boilerplate agreements with unsuspecting customers or employees who may later need broad discovery rules to vindicate their claims. In the end, bespoke procedure is a double-edged sword, highlighting both the promise and peril of relying on the market to police privatized procedural rules.
Keywords: discovery; complex litigation; civil procedure; private ordering; bespoke procedure
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