‘Uncovering Through Discovery’

Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, NBER Working Paper No 23866 (2017). Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be ‘proportional’ rather than excessive. But this focus has ignored the fact that the information sought in discovery about the defendant’s liability is often consciously created by the defendant’s compliance measures before any litigation actually occurs (a point I am examining in depth in a current project). More importantly, potential defendants may create such information with an eye to ensuring that uncovering it in litigation or through similar regulatory intervention is costly or impossible … (more)

[Sergio J Campos, JOTWELL, 9 January]

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