Discovery is generally thought to be an intractable part of litigation: the fact-finding process that unearths smoking guns and paints key witnesses into corners. But what if it ceased to exist? Loren Kieve, a nationally recognized trial attorney, says good riddance.
Kieve, who has litigated for 40 years and been named a Bay Area “Super Lawyer” for the past 14, first called for the end — the literal end — of discovery in 1991, in a ABA Journal essay-cum-manifesto when he was a partner at Debevoise & Plimpton.
“The great experiment of discovery is demonstrably an abject failure,” he wrote. “It should be eliminated, period.”
Since then, he contends, a bad problem has worsened.
In this edition of the Cullcast, Kieve explains why the value of scavenging for documentary evidence is largely illusory, and gives practical tips for how to reduce discovery costs under the current system.