In Defense of Experimentation with Automatic Disclosure

It would be presumptuous of me to criticize either view articulated, and even worse form to choose sides, in the recent dispute over the merits of automatic disclosure that graced the pages of this journal. Federal civil procedure cognoscenti need no introduction to these highly respected participants in, and students of, the federal courts. Former Judge Griffin B. Bell rendered distinguished service on the United States Court of Appeals for the Fifth Circuit before President Jimmy Carter appointed him Attorney General. Senior Judge William W Schwarzer compiled an excellent record of service as a judge of the United States District Court for the Northern District of California and was a prolific, frequently cited writer on federal civil procedure before he assumed the post of Director of the Federal Judicial Center (FJC). Only an author more foolish than I, therefore, would take on either of these federal court giants. Fortunately for me, several factors make that unnecessary. First, there is considerable merit to what Judge Bell and Judge Schwarzer propose, and both have thoroughly and carefully enunciated the cases for their respective positions on the merits of various proposals for automatic disclosure. Second, it is virtually impossible to ascertain which judge is correct due to the paucity of relevant empirical information that is currently available. Indeed, it may well be that each is right and both are wrong in some measure. All of these considerations indicate that discretion is the better part of valor. The preferable approach, accordingly, is to mediate this controversy by applying a substantial dose of that much-touted tonic, alternative dispute resolution. My purpose is to discover a pragmatic, feasible solution to the difficulties posed by the proposal for automatic disclosure which the United States Supreme Court transmitted to Congress on April 22, 1993 and to the disagreement over that proposal between Judge Bell and Judge Schwarzer. I find that remedy in the Civil Justice Reform Act (CJRA) of 1990, which affords an extremely effective vehicle for treating this dispute