In the modern era of few trials, the pretrial process is critical to the disposition of most cases. Discovery has been a fiercely debated subject for may years. Many commentators believe that discovery has become too expensive, very time consuming, and often abusive. Others disagree, and articulate an entirely different diagnosis of the problems in our civil justice system. Regardless, the scope of discovery, and the process for undertaking it, create predictable advantages and disadvantages for many types of litigants. Although state courts dispose of the vast majority of cases in the United States, academic writings on procedural matters, particularly discovery, often overlook this area. This Article focuses on the state court aspects of discovery and examines the discovery rules in state courts. The Author identifies dramatic changes taking place in these courts. The Author summarizes major trends in state rules, and discusses changes and experiments in four states Texas, Arizona, Illinois and Colorado in detail. The Article also analyzes whether changes in discovery are likely to create even further increases in the growing numbers of summary judgments granted, and whether voluntary sharing of information is likely to be successful in our adversary litigation system.
Seymour Moskowitz, Rediscovering Discovery: State Procedural Rules and the Level Playing Field, 54 Rutgers L. Rev. 595 (2002).