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Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse

The current system of discovery in the federal courts can produce enormous costs for both litigants and the court system. These costs stem from
the overuse of both discovery in general and costly mandatory discovery procedures that are relevant in only a small subset of litigation. The alleged
costs of discovery have spawned a number of articles and studies in recent years condemning the federal system of broad discovery.

In a pair of recent cases, the Supreme Court responded to the criticism of rising discovery costs by instituting a heightened pleading standard
meant to prevent meritless litigation from reaching the discovery stage. Unfortunately, this crude attempt to rein in unnecessary discovery also
threatens to kick much meritorious litigation out of the courts by preventing under-resourced plaintiffs from invoking the authority of the courts to
gather basic information crucial to their cases. Better solutions to the problem of discovery costs would address the system of discovery itself.

The primary problem with the current rules of discovery is that they sweep too broadly. Because the Federal Rules of Civil Procedure are transsubstantive—meaning that the same rules apply in every type of case—
the discovery rules are not narrowly tailored to the requirements of any particular case. Transsubstantivity was one of the guiding tenets in the
creation of the original Federal Rules of Civil Procedure, but the principle has come under attack more recently.

The creation of substance-specific (nontranssubstantive) rules, especially in the area of discovery, holds promise for reducing costs by replacing broad
rules with rules that are narrowly tailored to particular types of litigation. Narrowly tailored rules will help reduce waste and abuse in the discovery
process. A system of nontranssubstantive rules will also allow rulemakers to make deliberate choices about how discovery can be used as a tool to
promote goals of substantive and procedural fairness, thereby allowing rulemakers to decide when costly discovery would or would not be appropriate.