Discovery Dark Matter

Document Type

Article

Abstract

Discovery disputes are prevalent in pretrial practice but are largely absent
from law-school casebooks and the decisions of the Supreme Court. The lack of
formal appellate decisions contributes to the view that discovery functions like
civil litigation’s Wild West, without meaningful law development or error
correction. But, by looking at every reference to “discovery” in the Roberts
Court’s jurisprudence and hundreds of district courts’ review of magistrate
judges’ discovery orders, this Article identifies how this story leaves out a few
critical developments.


First, focusing on the lack of formal appellate decisions misses how
discovery is actually extensively featured in the Roberts Court’s decisions. For
example, Twombly and Iqbal changed the pleading standard in federal court
because of concerns about the ostensible cost of discovery. And there are dozens
of other examples in which fears about discovery are used to justify decisions
about jurisdiction, interbranch conflicts, First Amendment challenges, the reach
of certain statutes, and other issues. In this way, discovery acts like “dark
matter,” which is most easily identified by its effect on other areas of law.

Second, the assumption that discovery is beset by a lack of error correction
and law clarification because of the absence of formal appellate guidance fails
to recognize the normative guidance provided by the Court’s dark-matter
discovery and the quasi-appellate review following from the rise of magistrate
judges as the frontline managers of discovery. To the former, this Article
canvases almost fifty trial-level courts’ decisions that reference the discovery
dicta in Twombly and Iqbal to decide discovery disputes. To the latter, district
judges routinely review magistrate judges’ discovery decisions, and this Article
highlights several examples in which they correct unjust applications of the law
or clarify important doctrinal questions.

In this way, one sees how the functions of appellate review have been
channeled in ways consistent with institutional expertise instead of formal
judicial hierarchy. The trial-level judges are given primary responsibility for the
management of discovery disputes, including error correction and law
clarification, by having district judges review the decisions of magistrate judges.
At the other end of the spectrum, the Roberts Court has used its bully pulpit to
make pronouncements about the normative tradeoffs implicated by common
discovery disputes, which has some—but not necessarily a great deal of—
traction. While this jury-rigged system largely seems to be working, it has not
been explicitly identified, and several factors are poised to disrupt the existing
equilibrium.

https://texaslawreview.org/wp-content/uploads/2023/04/Endo.pdf

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