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"Looking Backward" to 1938

It is a pleasure to contribute to this celebration of the seventy-fifth anniversary of the Federal Rules. As one who has been something of a rulemaking insider for over twenty percent of the seventy-five years since the Federal Rules came into effect, I suppose I incline towards being an apologist—at least regarding recent developments.

I intend to focus mainly on the introduction and evolution of broad discovery. In part, that’s because discovery has been an almost constant focus of rulemaking for forty years and also is the most acute pressure point in the acidic relations the United States has had with the rest of the world due to distinct procedural arrangements. In addition, our broad discovery can serve as an avatar for the most aggressive visions of the peculiar American institution of private litigation as a force for good or evil. Not surprisingly, my general view is that the rulemakers have sought (fairly successfully) to steer a middle course between the most aggressive supporters and critics. Today, though, it may be that Silicon Valley is the source of greater challenges for discovery rules than either camp of critics.