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Unpublished Paper
Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse
ExpressO (2012)
  • Joshua M. Koppel, University of Pennsylvania

This article proposes reforming discovery in the federal courts through a switch to a system of nontranssubstantive discovery rules. Because the current discovery rules, like nearly all of the Federal Rules of Civil Procedure, are transsubstantive—meaning that the same rules apply in every type of case—they cannot be narrowly tailored to the requirements of any particular case. The creation of substance-specific (“nontranssubstantive”) rules holds promise for reducing costs by replacing broad rules with rules better fitted to particular types of litigation. Nontranssubstantive rules can be particularly effective in the area of discovery, where overbroad rules can be exploited by litigants intent on causing delay or raising costs for their counterparties.

After giving a brief review of the current federal discovery rules in Part I, Part II of this article examines the history of transsubstantive rules in the federal system and discusses the advantages and problems associated with transsubstantivity. Part III examines a number of possible models of nontranssubstantive discovery rules by looking to the practices of state jurisdictions. In order to place the nontranssubstantivity proposal in a broader context, Part IV examines two alternative reforms to the discovery rules and demonstrates how they would impose their own costs or would be inadequate in reducing expenses associated with discovery.

Part V of this article describes the implementation of the proposed system of nontranssubstantive discovery rules. This part discusses the process that the creation of nontranssubstantive discovery rules would entail and the challenges that rulemakers would likely confront. The rulemaking committee that would be best equipped to craft a nontranssubstantive system of discovery would bring together experts and practitioners from all sides of the issue. Because of political and legal considerations, the rulemaking body would be best situated in the legislative branch.

Although discovery reform of the type recommended in this article would require a major overhaul of the federal rules, nontranssubstantivity holds out the promise of narrowly-drawn procedures that would reduce costs while still providing litigants with the tools necessary for the efficient development of their cases.

  • Transsubstantive,
  • transsubstantivity,
  • nontranssubstantive,
  • nontranssubstantivity,
  • discovery,
  • discovery reform
Publication Date
February 20, 2012
Citation Information
Joshua M. Koppel. "Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse" ExpressO (2012)
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