Professor Spencer’s first proposal seeks a solution to a common complaint of defense counsels: burdensome discovery requests. Spencer argues the reintroduction of the judge into cases in which discovery poses a significant threat would mitigate many of the current problems. In essence, Spencer’s first proposal envisions a return to the pre-1970 Federal Rules of Procedure in these cases. Before the 1970 amendments, Rule 34 stated:
Upon motion of any party showing good cause therefor . . . the court in which an action is pending may [] order any party to produce . . . any designated documents . . . which constitute or contain evidence relating to any of the matters within the scope of the examination permitted in Rule 26(b) . . . .
Spencer
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Nonetheless, one could imagine a statute—such as the Private Securities Litigation Reform Act —codifying the requirements in certain circumstances. Moreover, as Spencer notes, “Rule 16(c)(2) already provides district judges with this authority. Specifically, Rule 16(c)(2)(F) empowers a court to ‘take appropriate action’ with respect to ‘controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37.’” Additionally, Rule 16 also allows judges to “refer[ ] matters to a magistrate or a master,” a right protected by Rule 53, Rule 72, and 28 U.S.C. § 636. In fact, Spencer points out several cases have used special masters to handle discovery. In the end, one wonders whether Spencer’s first proposal is even a change at …show more content…
First, at least two studies have shown defense attorneys agree courts and judges do not “sufficiently limit or otherwise protect parties against unreasonable burdensome e-discovery demands.” In fact, 87.5% of defense attorneys, and 78.4% of mixed practice attorneys agreed with the statement “courts do not understand the difficulties in providing e-discovery.” Additionally, as Spencer notes, “taking this approach would not be feasible or warranted in most cases, given [ ] judicial dockets are overloaded and [ ] most cases involve little discovery.[ ]” Conversely, given the process’s limitation to exceptional cases—those in which discovery presents an obvious limitation—such a concern may be overblown. Of course, judges would still have to recognize the cases in which discovery may be a problem, a task with which they currently struggle. Moreover, given the recurring budget and debt fights between Republicans and Democrats, increased judicial funding seems unlikely. The funding issues will significantly limit the availability of not only district courts, but also magistrate judges and special masters. Consequently, though addressing some problems, Spencer’s first proposal’s cost may render it