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INSTITUTE FOR CIVIL JUSTICE. The Legal and. Economic Implications of. Electronic Discovery. Options for Future Research. James N. Dertouzos, Nicholas M.
Table of contents

He failed to keep the board as informed as he should have. He stretched the outer boundaries of his authority as CEO by acting without specific board direction or involvement. He prematurely issued a press release that placed significant pressure on the board to accept Ovitz and approve his compensation package in accordance with the press release. To my mind, these actions fall far short of what shareholders expect and demand from those entrusted with a fiduciary position.

What was remarkable about the litigation for U. The reason for this oversight is that we have come to take this kind of discovery for granted. Litigation discovery, and the threat of litigation discovery, defines corporate shareholder litigation in the United States. As we show in Parts III and IV, the impact of shareholder litigation is intimately bound up with how modern discovery 1 affords litigants unprecedented tools to investigate corporate internal wrongdoing, 2 significantly decentralizes and leverages judicial investigative powers, 3 empowers parties with the greatest incentives to uncover wrongdoing, and 4 structures the litigation process more generally.

In agency-cost terms, the availability of litigation discovery by shareholders addresses an information asymmetry problem. Quality Uncertainty and the Market Mechanism, 84 Q. Shareholders can use litigation discovery to get information about the details of corporate self-dealing transactions or suspicious deals, which would otherwise be inaccessible to them. Knowing that this opportunity is available, and that shareholders can use the information once they obtain it, Third-generation transparency work suggests that transparency and disclosure are effective if interested parties can act on the information.

See Archon Fung et al. The Perils and Promise of Transparency —74 By allowing monitoring, ex post discovery reduces the private benefits of control associated with running public corporations. The impact of discovery goes far beyond the litigation process in that it promotes an overall culture of transparency in U. While most scholars and practitioners are generally aware of the atypical character of U. Simply stated, the U. The significance of modern civil discovery for corporate governance is not an unintended consequence of the rules. See also Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline , 53 U.

The goal of legal realists was nothing short of a modern revolution in governance. They sought to place governance on a scientific footing, turn over the details of public administration to experts, and thereby create a modern state that would promote social welfare. Unfettered competition would be tempered by social cooperation. Scientific decision-making by experts based on objective data would replace haphazard judgments by lay politicians and judges. Centralization would overcome the unsurveyable thicket of state and local governance regimes and ensure uniform, rational policies based on empirical evidence.

The Rules Enabling Act, which authorized the judiciary to develop and promulgate new rules of civil procedure for Article III courts, was passed in Pub. The rules were adopted in and became effective in Subrin, Fishing Expeditions Allowed: At the same time, another Yale Professor, William Douglas later appointed to the Supreme Court brought the same legal realist agenda to implementing the new securities disclosure regime at the Securities Exchange Commission, which was created by the Securities Exchange Act. Douglas , 56 Clev. The Rules Enabling Act authorized the promulgation of new uniform federal rules of procedure, Pub.

The arcane and esoteric nineteenth century writ system was abolished. The outcome of litigation would no longer depend principally upon the skill of adversaries to manipulate the complicated pleading rules and other technicalities. The new rules created a single cause of action, permitted the pleader to state multiple, alternative, and even mutually inconsistent claims, and joined bills in equity with actions at law. Pleading became a simple affair that, in simple negligence cases, barely required the assistance of counsel.

All that was needed was an ordinary-language complaint no magic words required that gave the defendant notice of the claims and stated the grounds for relief. The goal was the resolution of disputes on their merits and in the interests of justice. The rule-makers explicitly rejected dismissals based on technical defects in the pleadings before the plaintiff was given the chance to develop facts in support of his claims. Subrin, supra note , at Instead of deciding cases at the pleading stage or at trial, the new rules placed great emphasis on broad fact investigation by the parties themselves during an extended discovery period that would unveil the facts and circumstances of the dispute to both parties.

Extensive discovery was to afford all the parties to a case access to all the facts on either side before trial, thus allowing them to rationally assess the value of their case and encouraging settlements. The new discovery rules gave private litigants an entirely new panoply of tools to obtain information, expanding considerably on discovery mechanisms that first emerged in courts of equity and were gradually introduced in different forms in cases at common law in about half of the states during the late nineteenth and early twentieth centuries.

Combining the most liberal discovery rules to be found within the several states and in common law jurisdictions abroad and reshaping them systematically, the reformers changed the nature of civil adjudication. Although the earlier Federal Equity Rules had contained some related provisions for depositions and the subpoena duces tecum that authorized the procurement of documents from third parties, these tools were essentially limited to situations in which witnesses were unavailable for examination in open court and required a showing of good cause.

The reformers recognized the unprecedented and experimental character of the new rules. The proposed modern discovery tools were analogized to the latest scientific tools of observation. Discovery would place civil adjudication on a more rational, scientific foundation. Edson Sunderland, who was responsible for drafting the modern discovery rules, described the central role of discovery as follows:. It is probable that no procedural process offers greater opportunities for increasing the efficiency of the administration of justice than that of discovery before trial.

Much of the delay in the preparation of a case, most of the lost effort in the course of the trial, and a large part of the uncertainty in the outcome, result from the want of information on the part of litigants and their counsel as to the real nature of the respective claims and the facts upon which they rest. Sunderland, Foreword to Ragland, supra note , at iii. The most striking new tool was the deposition. Prior to the implementation of the FRCP, many states, including Delaware, did not permit the taking of oral depositions of witnesses before trial.

Even states that allowed oral depositions generally permitted the practice only for the purpose of preserving evidence. In courts at equity, depositions were traditionally permitted only as written questions. To draw up a series of questions and present them all at once to be answered, is certainly far less searching than to present questions one at a time, framing each successive question on the basis of prior answers given.

Answers usually suggest lines of further inquiry which often lead to the most important disclosures. This is, of course, the chief reason for the effectiveness of the oral cross-examination. By submitting a complete set of interrogatories prepared in advance, the parties seeking discovery entirely lose this enormous advantage in eliciting the truth. But depositions were permitted only of supporting witnesses.


Witnesses to be called by the opponent could not be deposed before trial, and party opponents were not required to provide testimony detrimental to their own case. Such privileges go far beyond attorney client privileges but include the right to refuse to bear witness against oneself. The principal purpose of depositions had been to preserve evidence. By the s, a few states tolerated the use of depositions as tools of discovery.

But the oral deposition of parties before trial for the purpose of developing evidence remained highly contentious. In a radical departure from prior practice, the FRCP incorporated deposition rules of the broadest scope. Neither leave of court nor the presence of a judge or commissioner was required. Contrast this with civil law rules that require both. Both supporting and hostile witnesses could now be deposed, including party opponents and their employees. Parties were required to appear on simple notice.

Third parties could be subpoenaed directly without leave of court. Attorneys could directly examine the witnesses. Contrast this with civil law rules making the judge the principal examiner. Verkerk , supra note 23, at —48; see also Langbein, supra note 23, at — Under the current rules, examination proceeds as at trial. But unlike at trial, cross-examination during deposition is not limited to matters raised on direct. Both parties can cross-examine a witness. And examiners can ask questions going far beyond what can be asked at trial. The deposition is recorded verbatim, allowing the examiner to pin down the witness.

The testimony can be used as evidence at summary judgment, at any hearing, or at trial. Other deposition testimony is also admissible, so long as it is otherwise admissible under the Federal Rules of Evidence. Testimony can be taken from witnesses who are not called at trial. In civil law jurisdictions, such as Germany, employees have a contractual duty to answer questions from an employer, e.

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See Hanna Blanz et al. An International Guide , supra note 53, at , paras. Examinations can last several days. The rules specifically contemplate the need to obtain information from large organizations without knowing who in the organization has the information sought. This is not possible under civil law rules, because taking the examination of a witness under oath is a judicial prerogative. Moreover, there is no obligation to answer questions by an attorney absent a specific contractual relationship, such as that between employer and employee.

The significance of this discovery tool cannot be overstated. The power to force a party opponent to sit for deposition under oath, answer virtually every question put to him by opposing counsel, confront him with documentary evidence, and have his testimony recorded verbatim, was unprecedented. It shocked at least one member of the original Advisory Committee, as the following transcript shows:.

You bring a suit against a man, without any ground whatever—the president of some important company, the president of a utilities company or a bank or something. You take his deposition, have the reporters present, and grill him in the most unfair way, intimating that he is a burglar or murderer, or this, that, and the other. He has no redress, and the next morning the papers have a whole lot of front-page stuff. It is too much like some of these Senate committees you used to sit on. The Committee thus recognized that the new deposition rules would give plaintiffs much the same authority as a congressional committee.

It had taken precisely this type of authority to investigate and uncover allegedly coercive, deceptive, and collusive practices among corporate and financial elites in the period before the rise of private enforcement through civil litigation. See generally Louis D. These and other confrontations in the s informed the debate about corporate governance problems arising from the separation of ownership and control. See Guolin Jiang, Paul G. See generally 6 James Wm. If a party had a substantive right to possession of a document in the hands of a third party, that party could request that the proceeding be stayed to permit him to exercise his right to possession.

This broad conception of relevance extends to all of discovery, including party-on-party interrogatories, document requests, witness examinations, requests for admissions, expert discovery, and third-party subpoenas. The combination of these tools, which can, for the most part, be used in any order, enable U. See infra notes — Of special significance, perhaps not entirely recognized by the original rules, is that the extraordinary authority to force the other party to produce all of its relevant documents makes depositions much more effective.

It is by confronting a witness with her own documents on the record, under oath, and with the help of cross-examination that an examiner can extract important admissions. Moreover, the use of interrogatories and the opportunity to depose record-keepers early during discovery provide all-important information about the existence and location of documents. See infra notes —39 and accompanying text. Options for Future Research 1 describing the vast amount of discoverable data available in an electronic world.

The rules do not place any specific limits on the kind or quantity of information that may be obtained via document requests. As is well known to U. While this statistic is vaguely appreciated outside the United States, the full extent and logistical requirements of litigation discovery in a U. The FRCP allow parties to engage in the exchange of information with very little supervision by the judge. In a departure from prior practice, and contrary to civil law jurisdictions, In civil law jurisdictions, parties must petition the court for an order to obtain evidence.

Before seeking an order to compel or a protective order from a judge, the parties must first attempt to resolve their dispute. Discovery practice is principally a sustained negotiation between the parties. When one party loses an unreasonable discovery motion, that party must pay the costs of the opposing party, which further discourages involving judges. Objections based on lack of relevance are disfavored.

Orders of protection in document discovery are granted sparingly. The results of discovery—interrogatory responses, documents, deposition transcripts, and other information—are not filed with the court, unless provided as evidence on a substantive motion; nor does the court review a majority of the testimony or documents produced during discovery.

This shows how decentralized the process of fact investigation is. The structure of the U. This means that the parties need not rely on the initiative or the presence of a judge; they control and perform this time-intensive phase of adjudication on their own. This reduces the burden on judges and prosecutors, whose resource constraints are most acutely felt in discovery; expedites the process; and enables more in-depth investigation by parties with the interests, expertise, and resources suited to pursue them.

As we discuss in the next section, federal rules of discovery influenced practice in state courts, like the Delaware Court of Chancery, which are important venues for corporate litigation. Tompkins held that federal courts apply state and federal substantive law, but federal procedural rules. State courts, where most shareholder derivative actions are litigated, apply state procedural rules. Do state procedural rules afford the same kind of probing discovery as the federal rules? The short answer is yes. While there are differences between federal and state court rules, which can easily trip up attorneys not familiar with local practices, as of , most U.

In their study, comparing state and federal rules, Oakley and Coon found that twenty-two states, plus the District of Columbia, could be classified as having procedural systems that were true replicas of the FRCP. Further, ten states, including Arkansas, Delaware, Georgia, Idaho, Kansas, Mississippi, Nevada, North Carolina, Oklahoma, and South Carolina largely replicated the federal rules, except for slight variations or codifications that had nothing to do with the nature or conduct of discovery.

The FRCP were adopted in toto with some minor differences in at least thirty-five states, including Delaware. But most jurisdictions, including the ones that follow their own rules, like California, New Jersey, and New York, do not significantly differ from the federal rules with regard to the scope of discovery or the available tools and procedures. These rule changes, however, did not expand discovery; if anything, they attempted to expedite discovery and limit discovery excesses by, inter alia , requiring parties to agree on a discovery plan early in the case, Fed.

But the basic version of the FRCP prevails in all states. This is true of Delaware. But they are, in certain respects, more permissive than the ones presently in effect in federal court. Thus, for example, Delaware Chancery Court Rule 26 is almost identical to the version of Federal Rule 26 from the s, when the philosophy of liberal discovery was at its apex.

The same is true for other jurisdictions. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Similarly, the chancery rules have no presumptive limits on the number of depositions or the number of interrogatories, as the Federal Rules now do.

But the Delaware Chancery amended its electronic discovery rules in to bring them in line with similar amendments to the FRCP. In short, the nature and scope of discovery in civil litigation is very similar in federal and state courts. The tools of discovery deployed in federal courts including interrogatories, depositions, the authority of attorneys to issue subpoenas, and the right to obtain all nonprivileged information, including ESI are also available in state courts.

Discovery is broad in scope, conducted by the parties themselves in accordance with the rules, and performed with minimal involvement by a judge. As Delaware shows, this does not mean that state rules are exact replicas of the federal rules, but that they operate in substantially the same way and produce substantially the same results. And, if anything, discovery in federal courts can sometimes be less permissive than in state courts. This Part describes in detail how litigation discovery has shaped U. Section A shows how the practices of offensive and defensive discovery generate and disseminate company internal information relevant to the determination of management misconduct at every stage of shareholder litigation, even prior to the beginning of formal discovery.

It argues that the process of discovery generates positive information externalities and disciplines management ex post and ex ante. Section B briefly discusses how the rules and practices of discovery have shaped mechanisms of internal corporate governance that protect against mismanagement and wrongdoing. Section C describes changes in substantive law that have been influenced by discovery. Second, we describe the gradual transformation of shareholder information rights into vehicles for prelitigation discovery.

Third, we consider the impact of information obtained through litigation discovery on changes in securities regulation. Section D concludes that litigation discovery complements federal securities disclosure and serves as a form of ex post disclosure. Thompson, Securities Litigation and Its Lawyers: Commenting on the burdens imposed on securities class action plaintiffs by the Private Securities Litigation Reform Act of , Lynn A. False positives lead to overdeterrence, whereas false negatives lead to underdeterrence. A Critical Analysis , U.

See Stout, supra note 42, at But neither Stout nor others See, e. Broad discovery reduces both false positives and false negatives by increasing accuracy, because it affords access to critical information. The better the information, the greater the accuracy, and the less likely a judge is to conclude from a single rotten apple that every apple in the barrel has worms.

In re Caremark International Inc. Derivative Litigation , A. Chancellor Allen could make these findings in the civil case only because of extensive civil discovery into what the board knew and what systems of monitoring and reporting the company had in place. Litigation discovery is integral to private enforcement and defines shareholder litigation in concrete and specific ways. Shareholder derivative actions are subject to different rules that intricately calibrate under what circumstances shareholders will be given the opportunity to obtain discovery against directors or officers of a corporate defendant.

Specialized judicial doctrines and procedural rules have emerged in this context. The business judgment rule, See, e. Van Gorkom, A. Absent fraud, illegality, or self-dealing, the business judgment rule ordinarily bars courts from reviewing the decisions of corporate management for breach of fiduciary duty. Van Gorkom , A. Thompson, Corporations and Other Business Associations: Cases and Materials 5th ed. Bennett N. Delaware followed a substantially similar rule in Zapata Corp.

Maldonado , A. The hurdles to obtaining discovery that plaintiffs face have developed over time, mostly in response to a new wave of shareholder derivative actions during the s. Perhaps not incidentally, the s amendments to the FRCP represented the highpoint of liberal discovery, generating backlash by the business community. Subsequent developments in securities litigation resulted in the passage of the Private Securities Litigation Reform Act of The PSLRA raised the pleading requirements for securities fraud actions and instituted other measures, such as a mandatory stay of discovery during the pendency of any motions to dismiss, in response to a wave of securities class actions during the late s and early s.

When plaintiff-side attorneys responded by filing actions in state court, Congress passed the Securities Litigation Uniform Standards Act of SLUSA , which preempted most state securities litigation. State cases filed in the aftermath of the PSLRA often had nearly identical claims to those brought by the same law firm in federal court.

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Hearing Before the Subcomm. The passage of SLUSA prevented plaintiffs from avoiding the discovery stay in federal court because state courts would apply their own procedural rules. While the corporate defense lobby successfully argued that the high discovery costs effectively allowed plaintiff-side firms to blackmail defendants into settling cases without merit, this is only one side of the story. In sum, the special hurdles to obtaining discovery have evolved in response to the special threat of discovery for corporate defendants in probes of corporate internal wrongdoing.

The threat of discovery emanates from multiple factors. Discovery is a costly procedural mechanism per se. Therefore, they gather as much information as possible. See supra note 42 on the costs of discovery. Moreover, unlike civil law jurisdictions where the loser pays, U. Thus, even if a defendant corporation succeeds on the merits in a shareholder action, it is saddled with its own litigation costs—which largely flow from discovery. It is the defendant corporation that must search for, review, and produce almost all of the documents and witnesses.

But the threat of discovery is not limited to the high litigation costs incurred by corporate defendants.


Quite apart from the costs, discovery increases chances that management will face liability for wrongdoing—whether related or unrelated to the claims set forth in any given complaint. Even if the threat of personal liability is remote, See Black et al. Todd Henderson, Impact of the Rakoff Ruling: Such mistakes may result in direct and indirect financial penalties. Executives may be forced to forgo expected compensation. See In re Bank of Am. Finally, management also faces opportunity costs as a result of discovery. The rules governing shareholder litigation are thus structured by determinations about when to allow, and when to deny, access to discovery.

Special features that characterize contemporary shareholder litigation in the United States—and that are generally taken for granted by U. These characteristics do not exist in other countries, because discovery does not exist. Some have objected to our thesis on the central importance of discovery by arguing that discovery materials, like corporate internal documents, e-mails, and witness testimony, generally do not become available to nonlitigants.

Where discovery materials are subject to confidentiality agreements, only the litigating parties have access to these materials. And the public only gains access to information obtained through discovery where such information is disclosed during hearings in open court—principally at trial. But cases are almost always settled before trial. Therefore, discovery cannot generate the kind of information externalities or disciplinary results that we suggest. In response, we first note that some shareholder derivative actions, like Disney Disney II , A. We address such cases in subsection 1.

Discovery, however, is presumptively public before and after trial. Plaintiffs are not required to enter confidentiality agreements that cover documents and testimony produced during discovery. Moreover, confidentiality agreements have their limitations. Finally, even if discovery materials are not filed with the court, explored during settlement hearings, or otherwise made available to the general public, discovery nonetheless generates detailed information about potential corporate internal wrongdoing during defensive discovery and during prediscovery internal investigations.

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In both cases, such information is shared with gatekeepers, and typically with regulators and parties to any settlement. We discuss these scenarios in subsections 4 and 5. Critics of shareholder litigation have focused on discovery costs, See sources supra note A radical solution would be elimination of derivative litigation. Recent empirical studies show that managers of public companies are rarely subject to personal liability, and liability for outside directors is almost nonexistent. But our discussion of the Disney litigation shows that, independent of any remedy, shareholder actions reveal and publicize substantial information about corporate internal practices, controls, judgments, and failures, including information about culpable wrongdoing and wrongdoing that falls just short of liability.

The knowledge and information produced by discovery about what really happened and how executives run their companies is an informational public good that private enforcement generates for markets, institutional investors, regulators, courts, gatekeepers, self-regulatory organizations, and the general public. The public good of information generated by shareholder litigation is illustrated by the Disney example.

The Disney court articulated new standards of fiduciary duty in board decision-making, relying on the facts revealed by discovery, which became part of a much broader corporate governance discussion about executive pay practices. Discovery in this case, and many other cases, such as Enron , Worldcom , and Tyco , informed the broader executive pay discussion, which ultimately led the SEC to require that public companies include a compensation, disclosure, and analysis CDA section in their periodic disclosures.

As Thompson and Thomas have stated,.

Public company suits continue to be filed and to make new law. The impact of decisions in derivative cases like Caremark , Disney , and Oracle goes well beyond the outcome of the cases themselves. These decisions changed the rules for future legal practice by allowing well-motivated legal counselors to get their clients to accept better conduct and procedures.

For an example of such advice on best practices after Disney , see Kevin M. Just as securities regulation is influenced by litigation discovery, shareholder litigation is also frequently driven by the actions of the securities regulator. Administrative agencies play a crucial role in investigating and requiring information about alleged corporate wrongdoing.

This role results in an important interaction between shareholder private litigation and SEC investigations. In this respect, discovery is not the only mechanism available for ex post information gathering and may be induced by other regulatory actions. But investigations and enforcement actions by the SEC have serious shortcomings with regard to information production. SEC investigations are generally confidential, and those confronted with an SEC enforcement action will provide the SEC with information, including documents and testimony, subject to a confidential treatment request.

Also, unlike a civil complaint, an SEC notice of formal investigation is confidential. Sachs, Securities Litigation and Enforcement: Cases and Materials 3d ed. Interviews are generally preferable whenever parallel proceedings or litigation exists or is likely, as such discussions with the staff will not generate witness transcripts as would be the case with formal testimony that may be discoverable.

Discovery, by contrast, promotes an important informational flow to the judiciary, to the administrative regulatory authorities, and to the public. Moreover, the SEC cannot pursue all cases that it should.

There are many reasons why this is so. The SEC does not have nearly enough staff or budgetary resources to investigate every allegation of wrongdoing. One response is to dramatically increase the resources of the SEC. See Rose, supra note , at — And there are political limits to further increases. Furthermore, according to the theory of regulatory capture put forward by George Stigler, the SEC may not have the right incentives to do so.

The SEC staff may suffer from selection or cognitive biases, or make mistakes in evaluating cases, which may interfere with efficient oversight. Research, Working Paper No. The SEC may focus on certain types of claims, in which wrongdoing is easier to observe. Finally, the SEC may simply not have the authority to take action in cases in which there are regulatory gaps, when the supposed wrongdoing falls under the overlapping authority of state law or a foreign jurisdiction.

All of these administrative issues, biases, and hindsight may prevent the regulator from making the best or most efficient decisions from a market perspective. In situations where the regulator has failed to pursue enforcement actions, the system must rely on the work of private attorneys general to oversee market participants and investigate misconduct. As the Disney litigation and many other cases show, often a complaint by shareholders is first brought by private plaintiffs. As described in our discussion of the Disney litigation, the very process of discovery disciplines management, aside from the generation of informational public goods.

Becoming the object of the kind of intense adversarial scrutiny that the Disney management endured is burdensome and disciplinary per se. Discovery forces managers to answer questions they do not want to answer; it challenges their power and authority in a public setting; it requires them to reveal their business secrets; and they face contempt and possible criminal charges if they engage in misrepresentations.

The process can result in employment and reputational consequences. Discovery may trigger a duty to file a Form 8-K with the SEC or restate earnings as was typical in the stock options backdating cases , because once obtained, whether routinely or through litigation discovery, material information must be disclosed. Such probes also raise the specter of criminal liability and other sanctions by regulators. Luck in highschool doesn't inevitably translate into good fortune in school. So how do scholars make sure that they continue to exist and thrive in university? Now any dealer stock industry, commodity, choice, and so forth.

Best Tips - download pdf or read online. When you are fresh to buying and selling and contemplating doing it as a enterprise you have to be ready. This ebook is written for new investors with 0 wisdom trying to find a place to begin. Then, after a year or two of implementation, one could directly analyze intermediate outcome measures in federal court cases, such as the scope of discovery requests and frequency of sanctions.

As a result, settlements demands will tend to increase more often than not. Thus, depending on the distribution, settlement probabilities can either increase or decrease. An increase in costs will increase the probability of settlement since both parties will wish to avoid such costs. Davis What occurs while public prosecutors, the main strong officers within the legal justice process, search convictions rather than justice?

Options for Future Research by James N. Dertouzos by Mark 4.