Asymmetry and Adequacy in Discovery Incentives: The Discouraging Implications in Haeger v. Goodyear

In this article, Professor Jeffrey Stempel explores the implications the decision in Haeger v. Goodyear Tire & Rubber Co. has for discovery and civil procedure. Professor Stempel argues the troublesome narrative that discovery problems and abuse are largely problems of claimants seeking excessive discovery that is unduly burdensome and costly relative to the case at hand is a significant part of the problem. Since the mid-1970s, the prevailing narrative has blamed discovery seekers more than discovery resisters.In that narrative, discovery problems are largely the problems of plaintiffs that are too unrealistic, sloppy, lazy, or greedy in frequently seeking excessive discovery. Overlooked or dismissed out of hand is the possibility that as much or more discovery abuse is committed by defendants failing to properly respond to valid information requests. This asymmetry unduly favors defendants, as reflected by the travails of the Haeger plaintiffs and counsel. The entire episode should be disturbing to the profession. While wasteful discovery is of course regrettable, it is largely a transparent problem that can be effectively regulated at its source or fixed by money in cases where excessive discovery is permitted. By contrast,the secretion or destruction of relevant information (restrictive discovery abuse) can easily lead to unfair results and a failure of the litigation system to achieve its goals of holding wrongdoers accountable, compensating victims, and creating incentives for better behavior