Asymmetry and Adequacy in Discovery Incentives: The Discouraging Implications of \u3ci\u3eHaeger v. Goodyear\u3c/i\u3e

In 2017, the U.S. Supreme Court unanimously vacated a $2.7 million fee-shifting award imposed on Goodyear Tire & Rubber Co. in response to rather egregious concealment of key testing documents concerning a failing tire blamed for a serious accident. Although the Court’s opinion does not foreclose imposition of substantial sanctions on remand, Haeger v. Goodyear stands as a rather stark illustration of the potential for discovery cheating to have comparatively little consequence—at least for the litigant if not counsel—if the cheating is not discovered until after conclusion of the matter. Although the perceived problem of excessive or overbroad discovery—“expansive discovery abuse”—has received substantial attention from rulemakers and commentators, the arguably greater problem of information concealment and spoliation—“restrictive discovery abuse”—has received insufficient attention, as have the problems of justice denied to victims and unduly weak incentives for discovery compliance. The deficiencies of the status quo require retooling of the discovery sanctions regime so that violators when caught are more effectively discouraged from such behavior