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Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Scott A Moss
Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or still-lingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as …